South Australia act

Fair Work Act 1994

In ForceSA

Jurisdiction

South Australia

Collection

act

Plain English Summary

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Mechanically, this Act imposes employer obligations on record‑keeping, payslips, payment of entitlements, civil penalties for deliberate non‑payment, unfair‑dismissal procedures through the SA Employment Tribunal (SAET), and detailed leave entitlements (sick, carer’s, annual, parental, bereavement, and family and domestic violence). It affects employers and employees in covered workplaces, creates compliance costs (records, evidence, retention) for employers, gives inspectors and associations enforcement tools, and provides remedies including reinstatement or capped compensation.

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What it does

The Fair Work Act 1994 (the Act) establishes a comprehensive state-based industrial relations framework for South Australia, operating alongside but distinct from the federal Fair Work Act 2009 (Cth) for non-national system employers. At its core, the Act regulates the employer-employee relationship by promoting "goodwill in industry" and contributing to "economic prosperity and welfare" (s 3(1)(a)–(b)), while facilitating efficiency, enterprise agreements, awards, dispute prevention, compliance, unfair dismissal remedies, freedom of association, and gender equity (s 3(1)(c)–(p)). It does so through a multi-pronged approach grounded in the objects set out in s 3, which SAET must regard when exercising powers (s 3(2), cross-referencing Schedules 9–11 on child labour, family responsibilities, and workers' representatives).

First, the Act imposes non-derogable minimum standards on contracts of employment. Division 2 of Chapter 3 Part 1 requires contracts to be construed as providing for remuneration per the minimum standard fixed by SAET's Full Bench (s 69(1)–(3)), which must fix a minimum weekly wage for adults, hourly casual rates, junior gradations, and incidental matters. Similar rules apply to sick/carer's leave (s 70 and Schedule 3), bereavement leave (s 70A and Schedule 3A), family and domestic violence leave (s 70B and Schedule 3B, inserted by later amendment but now integral), annual leave (s 71 and Schedule 4), and parental leave (s 72 and Schedule 5). These standards prevail over less favourable contract terms (s 69(1)(a)), awards, or agreements unless the latter are more beneficial overall. Section 72A allows additional paid parental leave standards, with mechanisms to exclude awards for cogent industry-specific reasons (s 72A(5)–(7)). Section 72B mandates a minimum severance standard for redundancy, applicable on application by employees or associations within 21 days of notice or termination (s 72B(5)–(8)), variable only for cogent reasons.

Current sections

Direct links to the current provisions in Fair Work Act 1994.

Part 1

Preliminary

Chapter 1—Preliminary 1—Short title This Act may be cited as the Fair Work Act 1994. 3—Objects of Act (1) The objects of this Act are— (a) to promote goodwill in industry; and (b) to contribute to the economic prosperity and welfare of the people of South Australia; and (c) to facilitate industrial efficiency and flexibility, and improve the productiveness of South Australian industry; and (ca) to promote and facilitate employment; and (d) to encourage enterprise agreements that are relevant, flexible and appropriate; and (e) to provide for awards that are relevant, flexible and expressed in non-technical language; and (f) to provide a framework for making enterprise agreements, awards and determinations affecting industrial matters that is fair and equitable to both employers and employees; (fa) to establish and maintain an effective safety net of fair and enforceable conditions for the performance of work by employees (including fair wages); and (fb) to promote and facilitate security in employment; and (g) to encourage prevention and settlement of industrial disputes by amicable agreement, and to provide a means of conciliation for that purpose; and (h) to provide a means for settling industrial disputes that cannot be resolved by amicable agreement as expeditiously as possible and with a minimum of legal formality and technicality; and (i) to ensure compliance with agreements and awards made for the prevention or settlement of industrial disputes, and to ensure compliance with any obligations arising under this Act; and (j) to provide employees with an avenue for expressing employment-related grievances and having them considered and remedied including provisions for a right to the review of harsh, unjust or unreasonable dismissals— (i) directed towards giving effect to the Termination of Employment Convention; and (ii) ensuring industrial fair play; and (k) to provide for absolute freedom of association and choice of industrial representation; and (l) to encourage the democratic control of representative associations of employers or employees, and the full participation by members in their affairs; and (m) to help prevent and eliminate unlawful discrimination in the workplace; and (ma) to promote and facilitate gender equity; and (n) to ensure equal remuneration for men and women doing work of equal or comparable value; and (o) to facilitate the effective balancing of work and family responsibilities; and (p) to facilitate the establishment and operation of a national industrial relations system based on co‑operative federalism through— (i) the use of dual appointments to Commonwealth and State bodies; and (ii) the promotion and facilitation of other arrangements that assist in integrating State and federal workplace relations systems and processes. (2) In exercising powers and carrying out functions under this Act, SAET is to have regard (where relevant) to the provisions of— (a) the Worst Forms of Child Labour Convention 1999 (See Schedule 9); and (b) the Workers with Family Responsibilities Convention 1981 (See Schedule 10); and (c) the Workers' Representatives Convention 1971 (See Schedule 11). 4—Interpretation (1) In this Act, unless the contrary intention appears— adult means a person of or above 21 years of age; apprentice means an apprentice or trainee within the meaning of the South Australian Skills Act 2008; association means— (a) an association, society or body formed to represent, protect or further the interests of employers or employees; or (b) an organisation, or a branch of an organisation, registered under the Commonwealth (Registered Organisations) Act; award means an order of SAET regulating remuneration or other industrial matters; child means a person who has not attained the age of 18 years; civil penalty provision—see section 104A(1); Commonwealth Act means the Fair Work Act 2009 of the Commonwealth; Commonwealth (Registered Organisations) Act means the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; conduct includes an omission; Consultative Council means the Industrial Relations Consultative Council; contract of employment means— (a) a contract recognised at common law as a contract of employment under which a person is employed for remuneration in an industry; or (b) a contract under which a person (the employer) engages another (the employee) to drive a vehicle that is not registered in the employee's name to provide a public passenger service (even though the contract would not be recognised at common law as a contract of employment); or Exception— The contract is not a contract of employment if the vehicle is a taxi and the contract would not be recognised at common law as a contract of employment. (c) a contract under which a person (the employer) engages another (the employee) to carry out personally the work of cleaning premises (even though the contract would not be recognised at common law as a contract of employment); or (d) a contract under which a person (the employer) engages another (the employee) to carry out work as an outworker (even though the contract would not be recognised at common law as a contract of employment); decision includes a refusal or failure to make a decision; demarcation dispute includes— (a) a dispute within an association or between associations about the rights, status or functions of members of the association or associations in relation to the employment of those members; or (b) a dispute between employers and employees, or between members of different associations, about the demarcation of functions of employees or classes of employees; or (c) a dispute about the representation under this Act of the industrial interests of employees by an association of employees; determination means an award, order, declaration, approval or decision; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; employee means a person employed for remuneration under a contract of employment and includes a public employee; employer means— (a) for public employees—see section 4A; (b) for other employees—a person who employs the employees for remuneration in an industry under a contract of employment; enterprise agreement means an agreement under Chapter 3 Part 2 of this Act between 1 or more employers and a group of employees regulating remuneration or other industrial matters (and includes a provisional enterprise agreement); Equal Remuneration Convention means the Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value set out in Schedule 6; Fair Work Commission means the Fair Work Commission established under the Commonwealth Act (or an industrial authority that takes the place of the Fair Work Commission under Commonwealth law); family—the following are to be regarded as members of a person's family— (a) a spouse or domestic partner; (b) a child; (c) a parent; (d) any other member of the person's household; (e) any other person who is dependent on the person's care; group of employees—see subsection (2); (indexed)—see subsection (4); industrial action means— (a) a work practice, or a way of performing work, adopted in connection with an industrial dispute, that restricts, limits or delays the performance of the work; or (b) a ban, limitation, or restriction affecting the performance of work, or the offering or acceptance of work; or (c) a failure or refusal in connection with an industrial dispute to attend for work, or to perform work, but does not include action taken by an employer with the agreement of the employees, or action taken by employees with the agreement of the employer; industrial authority means— (b) a commission, court, board, tribunal, or body having authority under the law of the Commonwealth or another State to exercise powers of conciliation, determination or arbitration in industrial matters; or (c) a body declared by regulation to be an industrial authority for the purposes of this definition; industrial dispute means a dispute, or a threatened, impending or probable dispute, about an industrial matter (and an industrial dispute does not come to an end only because the parties, or some of them, cease to be in the relationship of employer and employee); industrial instrument means— (a) an award or enterprise agreement under this Act; or (b) a fair work instrument under the Commonwealth Act; or (c) an instrument (but not an Australian workplace agreement) given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; industrial matter means a matter affecting or relating to the rights, privileges or duties of an employer or employers (including a prospective employer or prospective employers) or an employee or employees (including a prospective employee or prospective employees), or the work to be done in employment, including, for example— (a) the wages, allowances or remuneration of employees or prospective employees in an industry, or the piece-work, contract or other prices paid or to be paid for the employment, including any loading or amount that may be included in wages, allowances, remuneration or prices as compensation for lost time and the wages, allowances or remuneration to be paid for work done during overtime or on holidays, or for other special work, and also the question whether piece-work will be allowed in an industry; (b) the hours of employment in an industry, including the lengths of time to be worked, and the quantum of work or service to be done, to entitle employees to any given wages, allowances, remuneration or prices, and what times are to be regarded as overtime; (c) the age, qualification or status of employees, and the manner, terms and conditions of employment; (d) the relationship between an employer and an apprentice (and any matter relating to employment arising between an employer and an apprentice); (e) the employment of juniors and apprentices in an industry (including the number or proportion that may be employed); (f) the employment of any person, or of any class of persons, in addition to those referred to above, in an industry; (fa) matters in an industrial instrument relating to wage parity; (g) the refusal or neglect, without reasonable cause or excuse, of any person bound by an award, order or enterprise agreement to offer or accept employment, or to continue to be employed on the terms of the award, order or agreement; (h) any established or allegedly established custom or usage of an industry, either generally or in a particular locality; (i) the monetary value of allowances granted to or enjoyed by employees; (j) the dismissal of an employee by an employer; (k) a demarcation dispute; (ka) any matter affecting or relating to the performance of work by outworkers, including— (i) the giving out of work which is to be performed (or is reasonably likely to be performed), directly or indirectly, by an outworker; (ii) the regulation of any person who gives out work which is to be performed (or is reasonably likely to be performed), directly or indirectly, by an outworker; (iii) the creation of 1 or more contracts (including a series of contracts) dealing with the performance of work by outworkers; (iv) the terms or conditions under which work is performed by outworkers; (v) the protection of outworkers in any other respect; (l) the performance of work nude or partially nude, or in transparent clothing; (m) a matter classified as an industrial matter by regulation; (n) all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole; industry means a trade, business or occupation in which employees are employed; inspector—see section 219A; junior means an employee under the age of 21 years (but not an apprentice); legal practitioner means a person admitted to practise the profession of the law in this State; order includes direction; organisation means an organisation registered under the Commonwealth (Registered Organisations) Act; outworker—see section 5; peak entity means— (a) the Minister; and (b) the United Trades and Labor Council; and (c) the South Australian Employers' Chamber of Commerce and Industry Incorporated; and (e) any other body brought within the ambit of this definition by the regulations; place includes— (a) a building or structure; and (b) a vehicle; and (c) a ship or vessel; President means the President of SAET; public employee means— (a) a public sector employee, within the meaning of the Public Sector Act 2009, employed under, or subject to, that Act; or (b) any other person employed for salary or wages in the service of the State; registered agent means a person who is entitled to represent a party in proceedings before SAET by registration as an agent under this Act (See Chapter 2 Part 3); registered association means an association (which may include an organisation or branch) registered under Chapter 4 (Associations); Registrar means the Registrar or Deputy Registrar of SAET; remuneration means— (a) wages or salary; or (b) payment to or for the benefit of an employee in the nature of piece-work rates, penalty rates, shift premiums, overtime or special work rates; or (c) allowances; rules means the rules of SAET; SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014; single business means— (a) a business carried on by a single employer; or (b) a business carried on by two or more employers as a joint venture or common enterprise; or (c) a single project or undertaking; or (d) activities carried on by— (i) the State; or (ii) a body, association, office or other entity established for a public purpose by or under a law of the State; or (iii) another body in which the State has a controlling interest; spouse—a person is the spouse of another if they are legally married; State includes a Territory of the Commonwealth; taxi means a vehicle— (a) licensed or exempted from the requirement to be licensed under Part 6 (Taxis) of the Passenger Transport Act 1994; and (b) with seating accommodation for not more than 12 passengers; and (c) used predominantly for the transport of passengers rather than the transport of goods or other freight; Termination of Employment Convention means the Convention concerning Termination of Employment at the Initiative of the Employer set out in Schedule 7; workplace means any place where an employee works and includes any place where such a person goes while at work but does not include any premises of an employer used for habitation by the employer and his or her household other than any part of such premises where an outworker works; workplace law means a law (other than this Act) that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters) and includes a legislative instrument made under such a law. For example, this includes Acts which confer an entitlement to payment of long service leave and determinations of the Commissioner for Public Sector Employment under the Public Sector Act 2009. (3) A group of employees cannot be defined by reference to membership of a particular association. (4) If a monetary sum is followed by the word (indexed), the amount is to be adjusted on 1 January of each year by multiplying the stated amount by a proportion obtained by dividing State average full-time adult total earnings (seasonally adjusted) as at 30 June in the previous year by State average full-time adult total earnings (seasonally adjusted) as at 30 June in the year in which the stated amount was fixed by Parliament. 4AA—Act binds the Crown (1) This Act binds the Crown in right of the State. (2) The Crown is liable for an offence against this Act. (3) Without limiting subsection (2), the Crown is liable for a contravention of a civil penalty provision. (4) Section 7(2) of the Crown Proceedings Act 1992 does not apply in respect of proceedings under this Act (other than proceedings under section 10). 4A—Meaning of employer for public employees (1) For the purposes of paragraph (a) of the definition of employer in section 4(1), the employer for public employees is the body or person (not being a Minister) declared by regulation to be the employer of the employees. (2) The body or person referred to in subsection (1) is an instrumentality of the Crown and is capable of binding the Crown in relation to an industrial matter. 5—Outworkers (1) A person is an outworker if— (a) the person is engaged, for the purposes of the trade or business of another (the employer) to— (i) work on, process, clean or pack articles or materials; or (ii) carry out clerical work; or (b) a body corporate of which the person is an officer or employee and for which the person personally performs all or a substantial part of the work undertaken by the body corporate is engaged, for the purposes of the trade or business of another (the employer) to— (i) work on, process, clean or pack articles or materials; or (ii) carry out clerical work, and the work is carried out in or about a private residence or other premises that would not conventionally be regarded as being a place where business or commercial activities are carried out. (2) A person is also an outworker if— (a) the person is engaged, for the purposes of the trade or business of another (the employer) to— (i) negotiate or arrange for the performance of work by outworkers; or (ii) distribute work to, or collect work from, outworkers; or (b) a body corporate of which the person is an officer or employee and for which the person personally performs all or a substantial part of the work undertaken by the body corporate is engaged, for the purposes of the trade or business of another (the employer) to— (i) negotiate or arrange for the performance of work by outworkers; (ii) distribute work to, or collect work from, other outworkers. (3) To avoid doubt, a person who is engaged by another person to clean the private residence of a third person is not an outworker under this section. (4) Apart from this Chapter, the other provisions of this Act apply to outworkers if (and only if)— (a) a provision of an award or enterprise agreement relates to outworkers; or (b) a regulation made for the purposes of this subsection extends the application of this Act to, or in relation to, outworkers, and then, in such a case, the Act will apply in all respects to the relevant outworkers. (5) A regulation made for the purposes of subsection (4) cannot come into operation until the time has passed during which the regulation may be disallowed by resolution of either House of Parliament. 6—Application of Act to employment This Act does not apply to— (aa) employment with a national system employer (within the meaning of the Commonwealth Act), other than in relation to an excluded subject matter (within the meaning of the Fair Work (Commonwealth Powers) Act 2009); or (a) employment by the employee's spouse, domestic partner or parent; or (b) employment excluded by regulation from the ambit of this Act.

Part 2

Jurisdiction of SAET—special provisions

Chapter 2—Jurisdiction of SAET—special provisions Part 1—Conferral of jurisdiction, declarations and orders 7—Jurisdiction of SAET SAET has the jurisdiction conferred by this Act— (a) to adjudicate on rights and liabilities arising out of employment; and (b) in relation to industrial matters— (i) to approve enterprise agreements regulating remuneration and other industrial matters; and (ii) to make awards regulating remuneration and other industrial matters; and (iii) to hear, determine and regulate any matter or thing arising from or relating to an industrial matter; and (c) to settle and resolve industrial disputes. 8—Jurisdiction to interpret awards and enterprise agreements (1) SAET (constituted as the South Australian Employment Court) has jurisdiction to interpret an award or enterprise agreement. (2) In exercising its interpretative jurisdiction— (a) SAET should have regard to any evidence that is reasonably available to it of what the author of the relevant part of the award or enterprise agreement, and the parties to the award or enterprise agreement, intended it to mean when it was drafted; and (b) if a common intention is ascertainable—give effect to that intention. 9—Jurisdiction to decide monetary claims under industrial laws or instruments (1) SAET (constituted as the South Australian Employment Court) has jurisdiction to hear and determine monetary claims of the following kinds: (a) a claim for a sum due to an employee or former employee from an employer or former employer under this Act, a workplace law, an award, an enterprise agreement or a contract of employment; (b) a claim for a sum due to an employer or former employer from an employee or former employee under this Act, a workplace law, an award, an enterprise agreement or a contract of employment; (c) a claim for compensation to an employee or former employee from an employer or former employer for failure to make contributions (before or after the commencement of this Act) for the benefit of the claimant to a superannuation fund; (d) a claim for payment of a benefit against the trustee of a superannuation fund to which contributions have been made. (2) However, a claim cannot be made under subsection (1) in respect of a sum due under a workplace law if that workplace law confers jurisdiction on a court in respect of the claim. For example, a claim for a sum due under the Long Service Leave Act 1987 must be brought under section 13 of that Act and not under section 9(1) of this Act. 10—Jurisdiction to hear and determine questions arising under contracts of employment (1) SAET (constituted as the South Australian Employment Court) has jurisdiction to hear and determine any question, action or claim founded on, or otherwise arising out of or in relation to, a contract of employment (including a contract of employment that has been terminated) including (but not limited to)— (a) a claim for damages with respect to a breach of a contract of employment (including a claim where the employee under a contract of employment has been dismissed); and (b) a claim to recover a liquidated sum or debt under a contract of employment; and (c) an action for an order for specific performance; and (d) an action for the grant of an injunction. (2) Subject to subsection (4), the South Australian Employment Court may, in exercising its jurisdiction under this section— (a) make an order for specific performance against an employer or an employee under a contract of employment; (b) grant an injunction, or give equivalent relief, against an employer or an employee under a contract of employment even if to do so would effectively require specific performance of a contractual term against the employer or employee; (c) award damages against a party to a contract of employment on account of the manner of a breach of the contract (including where the breach constitutes or gives rise to a termination of the contract); (d) award damages and also provide a remedy by way of an order for specific performance or an injunction. (3) Subject to subsection (4), if the South Australian Employment Court is satisfied that it would best serve the interests of justice in a particular case, the Court should provide for specific performance or an injunction as a remedy— (a) even if such a remedy is in addition to, or in substitution for, an award of damages; and (b) even if, but for this subsection, only damages would be awarded. (4) The South Australian Employment Court— (a) should not, except in exceptional circumstances, in exercising its jurisdiction under this section— (i) make an order for specific performance against a natural person; or (ii) grant an injunction, or give equivalent relief, against a natural person under a contract of employment, if to do so would— (iii) effectively require an employer to reorganise, to a material extent, his or her undertaking; or (iv) effectively prevent an employee from obtaining other employment; and (b) in considering the interests of justice under subsection (3), should take into account— (i) the length of time that elapsed between the time when the cause of action in the proceedings arose and the time when the proceedings were commenced; and (ii) the extent to which there no longer exists mutual confidence in the employment relationship between the employer and the employee; and (iii) the extent to which there is evidence that compliance with an order for specific performance or an injunction would be impracticable or cause undue hardship, including, in the case of an employer, by taking into account the size of the employer's undertaking and the circumstances of the particular employment situation, and may take into account such other matters as the Court thinks fit. (5) Subsection (4)(a)(iv) does not apply so as to limit the orders that the South Australian Employment Court may make in relation to a restraint of trade clause in a contract of employment that is enforceable at common law. (6) The costs in any proceedings under this section will be awarded on the same basis (and in accordance with the same rules) as costs would be awarded in a corresponding civil action or claim brought in the District Court or the Magistrates Court (as the case may be). (7) This section does not limit the operation of section 9. (8) This section does not limit the operation of the Return to Work Act 2014. (9) In this section— contract of employment means a contract recognised at common law as a contract of employment. 11—Jurisdiction to settle and resolve industrial disputes (1) SAET (constituted as an industrial relations commission) has jurisdiction to settle and resolve industrial disputes. (2) In exercising its dispute settlement jurisdiction SAET may deal with a dispute as it considers appropriate including by any of the following: (a) conciliation or mediation; (b) making a recommendation or expressing an opinion; (c) arbitration. 12—Orders to remedy or restrain contraventions (1) SAET (constituted as the South Australian Employment Court) has jurisdiction to order a person who contravenes or fails to comply with a provision of this Act, an award or an enterprise agreement— (a) to take steps, specified in the order, within a time specified in the order, to remedy the contravention or non‑compliance; or (b) to refrain from further contravention of, or non‑compliance with, the provision. (2) If there are reasonable grounds to believe that a person is about to contravene or to fail to comply with a provision of this Act, an award or enterprise agreement, SAET has jurisdiction to order the person to refrain from the contravention or non‑compliance. 13—Advisory jurisdiction (1) SAET (constituted as an industrial relations commission) has jurisdiction to inquire into, and report and make recommendations to the Minister on, a question related to an industrial or other matter that is referred to SAET for inquiry by the Minister. (2) The jurisdiction conferred on SAET under subsection (1)— (a) is not to be assigned to the South Australian Employment Court; and (b) does not extend to inquiring into the South Australian Employment Court or matters that may be brought before the Court or that are being dealt with, or have been dealt with, by the Court. Part 2—Processes associated with industrial matters and disputes

Div 1

Processes generally

Division 1—Processes generally 14—Amendment or rectification of proceedings (1) SAET may— (a) allow the amendment of an application, notice, submission, report or other document associated with proceedings; or (b) correct an error, defect or irregularity (even though the error, defect or irregularity may be such as to render the proceedings void). (2) If SAET exercises its power to correct an error, defect or irregularity under subsection (1)(b), the proceedings are as valid and effective as if the error, defect or irregularity had never happened. 15—Power to re-open questions SAET may re‑open a question previously decided and amend or quash an earlier determination. 16—General power of waiver (1) SAET may, on conditions it considers appropriate, waive compliance with a procedural requirement of this Act or the rules. (2) SAET may punish non‑compliance with a procedural direction by striking out proceedings, or any defence, in whole or in part. 17—Applications to SAET (1) For the purposes of the South Australian Employment Tribunal Act 2014, proceedings before SAET under this Act are commenced by an application made to SAET— (a) if, in the Minister's opinion, it is in the public interest that the matter be dealt with by SAET—by the Minister; or (b) by an employer, or group of employers; or (c) by an employee, or group of employees; or (d) by a registered association of employers; or (e) by a registered association of employees; or (f) by the United Trades and Labor Council. (2) A natural person may bring an application as of right if the application is authorised under some other provision of this Act but otherwise must establish to the satisfaction of SAET— (a) that the claim arises out of a genuine industrial grievance; and (b) that there is no other impartial grievance resolution process that is (or has been) reasonably available to the person.

Div 2

Processes when constituted as an industrial relations commission

Division 2—Processes when constituted as an industrial relations commission 18—Advertisement of applications (1) Before SAET deals with the subject matter of an application, SAET must satisfy itself that reasonable notice of the substance of the application and the day and time it is to be heard has been given. (2) The substance of an application and the day and time it is to be heard must be— (a) advertised in the manner prescribed in the rules of SAET; or (b) communicated to all persons who are likely to be affected by a determination in the proceedings or their representatives. 19—Provisions of award etc relevant to how SAET intervenes in dispute If the parties to an industrial dispute are bound by an award or an enterprise agreement that provides procedures for preventing or settling industrial disputes between them, SAET must, in considering whether, when or how it will exercise its powers in relation to the industrial dispute, have regard to— (a) the procedures contemplated by the parties for preventing or settling industrial disputes; and (b) the extent the procedures (if applicable to the industrial dispute) have been complied with by the parties and the circumstances of any compliance or non‑compliance with the procedures. 20—Voluntary conferences (1) SAET may, if it appears desirable, call a voluntary conference of the parties involved in an industrial dispute. (2) A person who attends a voluntary conference called under this section is, on application to the Registrar, entitled to be paid an amount certified by the person presiding at the conference to be reasonable, having regard to the conduct of the person both before and at the conference and to the expenses and loss of time incurred by the person. (3) The amount certified under subsection (2) will be paid out of money appropriated by Parliament for the purpose. 21—Compulsory conference (1) SAET may, if it appears desirable, call a compulsory conference of the parties involved in an industrial dispute. (2) SAET may summon the parties to the dispute and any other person who may be able to assist in resolving the dispute to appear at the conference. (3) A compulsory conference may, at the discretion of SAET, be held in public or in private or partly in public and partly in private. (4) A person who fails to attend a compulsory conference as required by SAET's summons or who, having attended, fails to participate in the conference as required by the person presiding at the conference commits a contempt of SAET. (5) A person who attends a conference as directed by the person presiding at the conference will, on application to the Registrar, be entitled to be paid an amount certified by the person presiding at the conference to be reasonable, having regard to the conduct of the person both before and at the conference and to the expenses and loss of time incurred by the person. (6) The amount certified under subsection (5) will be paid out of money appropriated by Parliament for the purpose. 22—Reference of questions for determination (1) The person presiding at a compulsory conference may, after giving reasonable notice to the persons attending at the conference, refer the subject matter of the conference for determination by SAET (which may be constituted of the person who presided at the conference under this Part). (2) A matter may be referred for determination by SAET under subsection (1) orally and without formality. (3) An order of SAET on a reference under subsection (1)— (a) is binding only on persons represented before SAET or summoned to appear at the conference; and (b) if the parties to the industrial dispute are bound by an enterprise agreement, may not affect the terms of the agreement. 23—Experience gained in settlement of dispute After the settlement of an industrial dispute, SAET may invite the parties to the dispute to take part in discussions with a view to— (a) improving the process of conciliation and arbitration in accordance with the objects of this Act; and (b) encouraging the parties to agree on procedures for preventing or settling further disputes by discussion and agreement; and (c) deciding whether it would be appropriate for the parties to regulate their relationship by making an enterprise agreement or amending the terms of an existing enterprise agreement to provide more adequate means of dispute prevention or resolution.

Part 3

Representation

Part 3—Representation 25—Representation (1) In addition to section 51(1)(a) and (b) of the South Australian Employment Tribunal Act 2014, a party to proceedings before SAET under this Act is entitled, without leave, to be represented by— (a) in the case of a party that is not otherwise represented by counsel in accordance with section 51(1)(b) of the South Australian Employment Tribunal Act 2014—a registered agent; or (b) an officer or employee of an industrial association acting in the course of their office or employment with that industrial association. (2) However, in the case of a voluntary or compulsory conference, a party or intervener may, subject to subsections (3) and (4), only be represented by a legal practitioner or registered agent with the permission of the person presiding at the conference. (3) Permission is not required under subsection (2) if— (a) the legal practitioner or registered agent is an officer or employee of— (i) an employer who is a party to the proceedings; or (ii) the United Trades and Labor Council; or (iii) a registered association of which a member is a party to the relevant industrial dispute; or (b) the legal practitioner is acting on behalf of the Minister for the purposes of the conference; or (c) in the case of a compulsory conference—the matter has already been referred to SAET. (4) Permission will only be granted under subsection (2) if (and only if)— (a) all of the parties consent to the application for permission; or (b) another party is represented by a legal practitioner or registered agent; or (c) another party is a legal practitioner or is legally qualified; or (d) the person presiding at the conference is satisfied— (i) the party or intervener would, if permission were not granted, be unfairly disadvantaged; or (ii) permission is appropriate in the circumstances. (5) The costs incurred by a party for representation at a voluntary or compulsory conference by a legal practitioner or registered agent acting under the preceding subsections will not be included in any order for costs. 26—Registered agents (1) The Registrar must maintain a register of registered agents. (2) A person who applies for registration or renewal of registration is entitled to registration or renewal of registration (as the case requires) if the person— (a) has the qualifications and experience required by regulation for registration or the renewal of registration (as the case requires); and (b) satisfies the Registrar as to any other matter or requirement prescribed by the regulations; and (c) pays the relevant fee fixed by regulation. (3) A person who is not entitled to practise as a legal practitioner because his or her name has been struck off the roll of legal practitioners in this State or elsewhere or because of other disciplinary action taken against him or her is not eligible to become or remain registered as an agent. (4) Registration will be granted or renewed for a period (not exceeding 2 years) determined by the Registrar. (5) The Governor may, by regulation, establish a code of conduct to be observed by registered agents. (6) The code of conduct may (for example) deal with the following matters: (a) it may regulate the fees to be charged by registered agents; (b) it may require proper disclosure of fees before the registered agent undertakes work for a client; (c) it may limit the extent to which a registered agent may act on the instructions of an unregistered association. 27—Inquiries into conduct of registered agents or other representative (1) The Registrar may inquire into the conduct of a registered agent or other representative in order to determine whether proper grounds for disciplinary action exist. (2) Proper grounds for disciplinary action exist if— (a) in the case of a registered agent— (i) the agent commits a breach of the code of conduct; or (ii) the agent is not a fit and proper person to remain registered as an agent; or (b) in the case of another representative—the representative's conduct falls short of the standards that should reasonably be expected of a person undertaking the representation of another in proceedings before SAET. (3) If, on inquiry, the Registrar finds that proper grounds for disciplinary action exist, the Registrar may— (a) issue a letter of admonition; or (b) if the representative is a legal practitioner—refer the matter to the Legal Profession Conduct Commissioner for investigation; or (c) if the representative is a registered agent— (i) suspend the agent's registration for a period of up to 6 months; or (ii) cancel the agent's registration. (4) An appeal lies to SAET against a decision of the Registrar under subsection (3)(c). (5) An appeal must be instituted in accordance with the rules of SAET.

Part 4

Concurrent appointments—other industrial authorities

Part 4—Concurrent appointments—other industrial authorities 28—Concurrent appointments (1) A member of SAET may, with the Minister's approval, be appointed also as a member of an industrial authority under the law of the Commonwealth or another State. (2) If the Minister revokes an approval under subsection (1), the member must resign from office as a member of the other industrial authority. (3) A member of an industrial authority constituted under the law of the Commonwealth or another State may be appointed also as a member of SAET (to hold a position within SAET determined by the President after consultation with the Minister) and, if such an appointment is made, this Act applies with the following qualifications: (a) the appointment terminates if the member ceases for any reason to hold office as a member of the relevant industrial authority; (b) the member is not entitled to be remunerated as a member of SAET but is entitled, in circumstances determined by the Governor, to allowances for expenses at rates fixed by the Governor. (4) If a member holds concurrent appointments, then— (a) if the member was appointed first to SAET and subsequently to the other industrial authority, the extent the member performs the duties of a member of that other industrial authority will be determined by agreement between the President and the head of that other industrial authority; or (b) if the member was appointed first to the other industrial authority and subsequently to SAET, the extent the member performs the duties of a member of SAET will be determined by agreement between the President and the head of that other industrial authority. 29—Powers of member holding concurrent appointments A member who holds concurrent appointments under this Part may, in an appropriate case, simultaneously exercise powers deriving from both or all appointments.

Part 5

Special provisions relating to monetary claims etc

Part 5—Special provisions relating to monetary claims etc 30—Interpretation monetary claim means a claim under section 9 or a claim for a sum or a debt under section 10. 31—Limitation of action A monetary claim must be made within 6 years after the sum claimed became payable, but no time limitation applies to a claim for the non-payment of superannuation contributions. 32—Who may make a claim (1) A monetary claim may be made on behalf of the claimant by an association. (2) A monetary claim may be made by a minor as if the minor had attained the age of majority. (3) A claim relating to money that should have been paid to or for the benefit of a person who is now dead may be made by the personal representative of the deceased person or a beneficiary of the deceased person's estate. 33—Simultaneous proceedings not permitted The South Australian Employment Court may not hear a monetary claim if it appears that proceedings based on the same claim have begun in another court and the proceedings have not been withdrawn or struck out. 34—Judgment to include interest (1) Unless there is good reason for not doing so, the South Australian Employment Court must, on the application of a party in favour of whom a judgment is made for the payment of a monetary amount, include in the judgment an award of interest or a lump sum instead of interest. (1a) An award of interest, or lump sum instead of interest, determined under this section must take into account the period between the day the relevant cause of action arose and the day the judgment is delivered. (a) the South Australian Employment Court may not authorise the award of interest on interest; and (b) if interest is payable because of an antecedent right, the award may reflect the antecedent right but may not create a right to additional interest; and (c) the South Australian Employment Court may not award interest on an amount for which judgment is given by consent except by consent of the parties. (3) This section applies in respect of any claim under Part 1 for payment of a sum due or other monetary amount. 35—Monetary judgment (1) The South Australian Employment Court may authorise or direct that a monetary amount awarded be paid in instalments. (2) The South Australian Employment Court may direct that compensation for non-payment of contributions that should have been, but were not, made to a superannuation fund be paid to a superannuation fund on the claimant's behalf. (3) This section applies in respect of any claim under Part 1 for payment of a sum due or other monetary amount. 36—Costs (1) The South Australian Employment Court may only award costs in proceedings based on a monetary claim as follows— (a) the Court may award costs on a claim for non-payment of superannuation contributions to cover reasonable expenses incurred by the claimant to establish the present value of the loss; and (b) the Court may award costs on an appeal. (2) In connection with the operation of subsection (1)(b), a party to appeal proceedings may only be ordered to pay costs incurred by another party to the proceedings if— (a) the Court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the Court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs. (3) This section does not apply in relation to a claim under section 10. Chapter 3—Employment Part A1—Interpretation 65—References to SAET A reference in this Chapter to SAET is a reference to SAET constituted as an industrial relations commission. Part 1—General conditions of employment Division 1—Basic contractual features 66—Basis of contract of employment A contract of employment may be for a fixed term, or on a monthly, fortnightly, weekly, daily, hourly or other basis. 67—Accrual of wages (1) Wages accrue under a contract of employment from week to week. (a) if an employee is employed on an hourly basis, wages accrue from hour to hour; and (b) if an employee is employed on a daily basis, wages accrue from day to day; and (c) if a person is employed on neither an hourly nor a daily basis, but the period of employment is less than a week, wages accrue at the end of the period of employment. 68—Form of payment to employee (1) If an employee does work for which the remuneration is fixed by an award or enterprise agreement, the employer must pay the employee in full, and without deduction, the remuneration so fixed. (2) The payment must be made— (a) in cash; or (b) if authorised in writing by the employee or in an award or enterprise agreement by an employee association whose membership includes the employee or employees who do the same kind of work— (i) by cheque (which must be duly met on presentation at the ADI on which it is drawn) payable to the employee; or (ii) by postal order or money order payable to the employee; or (iii) by payment into a specified account with a financial institution. (3) However, the employer may deduct from the remuneration— (a) an amount the employer is authorised, in writing, by the employee to deduct and pay on behalf of the employee; and (b) an amount the employer is authorised to deduct and pay on behalf of the employee under an award or enterprise agreement; and (c) an amount the employer is authorised or required to deduct by order of a court, or under a law of the State or the Commonwealth. (4) An employee may, by giving written notice to the employer, withdraw an authorisation under this section. (5) Despite the other provisions of this section, remuneration may be paid by the Crown to an employee by cheque or by payment into an account with a financial institution specified by the employee, but, if payment is by cheque, there must be no deduction from the amount payable because the payment is made by cheque. (6) An employer who fails to comply with a requirement under subsection (2) or (5) is guilty of an offence. Maximum penalty: $3 250. Expiation fee: $325. Division 2—Contracts to be construed subject to relevant minimum standards 69—Remuneration (1) A contract of employment is to be construed as if it provided for remuneration in accordance with the minimum standard for remuneration in force under this section unless— (a) a rate that is more favourable to the employee is fixed by the contract of employment; or (b) the rate of remuneration is fixed in accordance with an award or enterprise agreement. (2) A rate of remuneration fixed by a contract of employment, or an award or enterprise agreement, must be consistent with the Equal Remuneration Convention. (3) The minimum standard for remuneration in force under this section is a standard established by a Full Bench of SAET in accordance with the following provisions: (b) proceedings to establish the standard may be commenced by application by a peak entity, or by SAET acting on its own initiative; (c) a minimum standard for remuneration must— (i) fix a minimum weekly wage for an adult working ordinary hours; and (ii) fix a minimum hourly rate for an adult working on a casual basis; and (iii) fix age-based gradations for juniors having regard to existing award conditions; and (iv) cover such other incidental or related matters as should, in the opinion of SAET, be dealt with in the minimum standard. 70—Sick leave/carer's leave (1) A contract of employment is to be construed as if it provided for sick leave/carer's leave in terms of the minimum standard for sick leave/carer's leave in force under this section unless— (2) The minimum standard for sick leave/carer's leave in force under this section is— (a) the standard set out in Schedule 3; or (a) review the minimum standard for sick leave/carer's leave in force under this section; and (b) if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard. (4) An application under subsection (3) must not be made within 2 years after the completion of a previous review of the standard by SAET under this section. 70A—Bereavement leave (1) A contract of employment is to be construed as if it provided for bereavement leave in terms of the minimum standard for bereavement leave in force under this section unless— (2) The minimum standard for bereavement leave in force under this section is— (a) the standard set out in Schedule 3A; or (a) review the minimum standard for bereavement leave in force under this section; and (b) if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard. (4) An application under subsection (3) must not be made— (a) within 2 years after the commencement of this section; or (b) within 2 years after the completion of a previous review of the standard by SAET under this section. 70B—Family and domestic violence leave (1) A contract of employment is to be construed as if it provided for family and domestic violence leave in terms of the minimum standard for family and domestic violence leave in force under this section unless the provisions of the contract are more favourable to the employee. (2) The minimum standard for family and domestic violence leave in force under this section is— (a) the standard set out in Schedule 3B; or (a) review the minimum standard for family and domestic violence leave in force under this section; and (b) if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard. (4) An application under subsection (3) must not be made— (a) within 2 years after the commencement of this section; or (b) within 2 years after the completion of a previous review of the standard by SAET under this section. 71—Annual leave (1) A contract of employment is to be construed as if it provided for annual leave in terms of the minimum standard for annual leave in force under this section unless— (2) The minimum standard for annual leave in force under this section is— (a) the standard set out in Schedule 4; or (a) review the minimum standard for annual leave in force under this section; and (b) if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard. (4) An application under subsection (3) must not be made within 2 years after the completion of a previous review of the minimum standard by SAET under this section. 72—Parental leave (1) A contract of employment is to be construed as if it provided for maternity, paternity and adoption leave (and associated part-time work) in terms of the minimum standard for parental leave in force under this section unless— (2) The minimum standard in force under this section is— (a) the standard set out in Schedule 5; or (a) review the minimum standard for parental leave in force under this section; and (b) if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard. (4) An application under subsection (3) must not be made within 2 years after the completion of a previous review of the minimum standard by SAET under this section. 72A—Minimum standards—additional matters (1) A Full Bench of SAET may, on application by a peak entity, establish a standard relating to paid parental leave that, subject to this section, is also to apply as a minimum standard to all employers and employees. (2) A contract of employment is to be construed as if it incorporated any minimum standard established under subsection (1) unless— (3) SAET may, when substituting or establishing a standard under this Division, exclude an award from the ambit of the standard (or a part of the standard). (4) Subject to subsections (5) and (6), a standard substituted or established by SAET under this Division prevails over a preceding award to the extent that the standard is more favourable to employees than any standard prescribed by the particular award. (5) A party to an award may, within 28 days after a standard is set by SAET under this Division, apply to SAET to have the award excluded from the ambit of the standard (or a part of the standard). (6) SAET may grant an application under subsection (5) if (and only if) SAET is satisfied that there are cogent reasons for doing so taking into account matters or conditions that specifically apply or prevail in the relevant industry or industries. (7) SAET may grant an application under subsection (5) on such conditions as SAET thinks fit. (8) SAET, in acting under this Division— (a) must ensure that each peak entity is notified of the relevant proceedings and allowed a reasonable opportunity to make representations; and (b) may (as it thinks fit) receive and take into account oral or written representations (or both) from any other person or persons who have, in the opinion of SAET, a proper interest in the matter. 72B—Special provision relating to severance payments (1) A Full Bench of SAET must establish a minimum standard for severance payments on termination of employment for redundancy that will apply in the manner contemplated by subsection (5). (2) SAET may thereafter, on application by a peak entity— (a) review the minimum standard for severance payments on termination of employment for redundancy in force under this section; and (b) if satisfied that a variation of the minimum standard is necessary or desirable to give effect to the objects of this Act—substitute a fresh minimum standard. (3) An application under subsection (2) must not be made within 2 years after the completion of previous proceedings to establish or review the standard by SAET. (4) SAET, in acting under this section— (a) must ensure that each peak entity is notified of the relevant proceedings and allowed a reasonable opportunity to make representations; and (b) may (as it thinks fit) receive and take into account oral or written representations (or both) from any other person or persons who have, in the opinion of SAET, a proper interest in the matter. (5) SAET may, on application by— (a) an employee (or a group of employees); or (b) a registered association acting on behalf of an employee or a group of employees, make an order applying the minimum standard for severance payments in such manner as SAET thinks fit. (6) An application may be made under subsection (5) if (and only if)— (a) — (i) the relevant employee or employees have been given notice of a pending redundancy or redundancies; or (ii) the employment of the relevant employee or employees has been terminated for redundancy; and (b) the application is made within 21 days after the notice is given or the employment is terminated. (7) An order under subsection (5)— (a) need not be made by SAET; and (b) may provide for the variation of the minimum standard for severance payments in the circumstances of the particular case; and (c) may be made on such conditions as SAET thinks fit. (8) SAET must only act under subsection (7)(b) if satisfied that there are cogent reasons for doing so. Part 2—Regulation of industrial matters by enterprise agreements 73—Objects of this Part The objects of this Part are— (a) to encourage and facilitate the making of agreements governing remuneration, conditions of employment and other industrial matters at the enterprise or workplace level; and (b) to provide a framework for fair and effective negotiation and bargaining between employers and employees with a view to the making of such agreements and to provide for the participation of associations in the process of negotiation and bargaining; and (c) to ensure that award remuneration and conditions of employment operate as a safety net underpinning the negotiated agreements at the enterprise or workplace level; and (d) to provide for improved flexibility in conditions of employment at the enterprise and workplace level with consequent increases in efficiency and productivity. 74—Nature of enterprise agreement An enterprise agreement may be made about remuneration and other industrial matters. 75—Who may make enterprise agreement (1) An enterprise agreement may be made between— (a) 1 or more employers; (b) a group of employees. (2) A registered association may enter into an enterprise agreement on behalf of— (a) any member or members of the association who have given the association an authorisation to negotiate the enterprise agreement on their behalf; or (b) any group of employees (whether or not members of the association) if the association is authorised, after notice has been given as required by the regulations, by a majority of the employees constituting the group to negotiate the enterprise agreement on behalf of the group. (3) A member of an association is taken to have given the association an authorisation for the purposes of subsection (2) for as long as the member remains a member of the association unless the member, by written notice given to the association, withdraws the authorisation. (4) An authorisation given to an association by an employee who is not a member of the association— (a) cannot be given generally but must be specifically related to a particular proposal for an enterprise agreement; and (b) remains in force (subject to revocation by written notice given to the association) until the relevant enterprise agreement is rescinded or superseded. (5) If— (a) an employer proposes to have an enterprise agreement with a group of employees who are yet to be employed by the employer; and (b) the employees— (i) are of a class not currently, or formerly, employed by the employer or a related employer in South Australia; or (ii) are to be engaged in operations of a kind that are not currently, and have not been formerly, carried on by the employer or a related employer in South Australia, the employer may enter, on a provisional basis, into an enterprise agreement binding on the employees who become members of the group (a provisional enterprise agreement) with a registered association of employees (or both). (7) A notice under subsection (6) must include details of the group of employees to which the agreement is to apply. (9) A person who becomes, or ceases to be, a member of a group of employees defined in an enterprise agreement as the group bound by the agreement, becomes or ceases to be bound by the enterprise agreement (without further formality). 76—Negotiation of enterprise agreement (1) An employer must, before beginning negotiations on the terms of an enterprise agreement give the employees who may be bound by the agreement at least 14 days' notice, in accordance with procedures prescribed by regulation, that negotiations are about to begin (but notice is not required if the agreement is negotiated to settle an industrial dispute, or SAET determines that there is good reason in the circumstances of the case to exempt the employer from this requirement). (2) The employer must, before beginning negotiations on the terms of an enterprise agreement, inform the employees of their right to representation in the negotiation, and proceedings for approval, of the agreement and, in particular, that an employee may be represented by an agent of an employee's choice, or a registered association of employees. (3) If an employer is aware that an employee is a member of a registered association, the employer must, before beginning negotiations on the terms of an enterprise agreement, take reasonable steps to inform the association that the negotiations are about to begin. (4) An employer who negotiates an enterprise agreement with employees who are subject to an award must ensure that the employees have reasonable access to the award. (5) A person involved in negotiations for an enterprise agreement must comply with procedures and formalities applicable to that person that are required by regulation. (5a) If an employee involved in negotiations for an enterprise agreement suffers from an intellectual disability that prevents the employee from having a proper understanding of the negotiations, then any of the following may negotiate on the employee's behalf and take any steps that the employee might take if he or she did not suffer from the disability: (a) a person who is— (i) a guardian at law of the employee; or (ii) the donee of a power of attorney from the employee; or (iii) a substitute decision‑maker under an advance care directive (within the meaning of the Advance Care Directives Act 2013) given by the employee (being a substitute decision‑maker who is authorised to make decisions relating to the employee's employment); or (b) a person appointed to represent the employee's interests for the purposes of this Act by a person within the ambit of paragraph (a). (6) This section does not prevent employees or a registered association of employees from initiating negotiations on a proposed enterprise agreement, but in that case, the employer must, before entering into the negotiations, give the notice and information required by this section to ensure that the interests of all employees who may be affected by the proposed agreement are properly protected. (7) This section does not apply to negotiations on the terms of an enterprise agreement that is to be entered into on a provisional basis. 76A—Best endeavours bargaining (1) The parties to the negotiations must use their best endeavours to resolve questions in issue between them by agreement. (2) In particular, the parties to the negotiations (or their duly authorised representatives)— (a) must meet at reasonable times, and at reasonable places, for the purpose of commencing and furthering the negotiations; and (b) must state and explain their position on the questions at issue to all other parties to the negotiations; and (c) must disclose relevant and necessary information; and (d) must act openly and honestly; and (e) must not alter or shift the ground of negotiation by capriciously adding matters for consideration or excluding matters from consideration; and (f) must adhere to agreed negotiation procedures; and (g) must adhere to agreed outcomes and commitments; and (h) if the parties are able to arrive at an agreed timetable for achieving agreement—must use their best endeavours to meet the timetable. (3) SAET may, on the application of a party to any negotiations, give directions to resolve any dispute as to the composition of the group of employees for negotiating purposes. (4) An employer cannot be required, as part of any negotiations under this Part, to produce any financial records relating to any business or undertaking of the employer. (5) SAET may, on the application of a party to the negotiations, take steps to resolve a matter by conciliation. (6) Nothing in a preceding subsection prevents a party to negotiations for an enterprise agreement deciding to withdraw from the negotiations entirely. 77—Form and content of enterprise agreement (1) An enterprise agreement— (a) must be in writing; and (b) must— (i) specify the employer to be bound by the agreement; and (ii) define the group of employees to be bound by the agreement; and (c) must include procedures for preventing and settling industrial disputes between the employer and employees bound by the agreement; and (d) if a majority of at least two-thirds of the total number of employees to be covered by the agreement agree—may include a provision giving an association of employees that is able to represent the industrial interests of the employees' rights to represent the industrial interests of those employees to the exclusion of another association of employees1; and (e) must provide that sick leave is available, subject to limitations and conditions prescribed in the agreement, to an employee if the leave becomes necessary because of the sickness of a child, spouse, domestic partner, parent or grandparent (unless the agreement specifically excludes the extension of sick leave to such circumstances); and (f) must make provision for the renegotiation of the agreement at the end of its term; and (g) must be signed as required by regulation by or on behalf of the employer, and on behalf of the group of employees, to be bound by the agreement. (2) An enterprise agreement should be submitted to SAET for approval within 21 days after the agreement is signed by or on behalf of the persons who are to be bound by it.

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

1 However, the provision must be consistent with section 116(1). 78—Enterprise agreement has no force or effect without approval An enterprise agreement has no force or effect unless approved by SAET. 79—Approval of enterprise agreement (1) Except as otherwise provided, SAET must approve an enterprise agreement if, and must not approve an enterprise agreement unless, it is satisfied that— (a) before the application for approval was made, reasonable steps were taken— (i) to inform the employees who are covered by the agreement about the terms of the agreement and the intention to apply to SAET for approval of the agreement; and (ii) to explain to those employees, the effect the agreement will have if approved and, in particular— • to identify the terms of an industrial instrument (if any) that currently apply to the employees and will, if the agreement is approved, be excluded by the agreement; and • if the agreement supersedes an earlier enterprise agreement, to identify the differences in the terms of the agreements; and • to explain the procedures for preventing and settling industrial disputes as prescribed by the agreement; and • to inform the employees of their right to representation in the negotiation, and proceedings for approval, of the agreement and, in particular, that an employee may be represented by an agent of an employee's choice, or an association of employees; and (b) the agreement has been negotiated without coercion and a majority of the employees covered by the agreement have genuinely agreed to be bound by it; and (c) if the agreement is entered into by a registered association as representative of 1 or more employees bound by the agreement—SAET is satisfied (in such manner as it thinks fit) that the association is authorised to act in accordance with the provisions of this Act; and (d) the agreement provides for consultation between the employer and the employees bound by the agreement about changes to the organisation and performance of work or the parties have agreed that it is not appropriate for the agreement to contain provision for such consultation; and (e) the agreement— (i) is, on balance, in the best interests of the employees covered by the agreement (taking into account the interests of all employees); and (ii) does not provide for remuneration or other conditions of employment that are inferior to the standards that apply under Part 1 Division 2; and (iii) does not provide for remuneration or conditions of employment that are (considered as a whole) inferior to remuneration or conditions of employment (considered as a whole) prescribed by an award under this Act that applies to the employees at the time of the application for approval; and (f) the agreement is consistent with the objects of this Part; and (g) the agreement complies with the other requirements of this Act. (1a) The agreement of employees to be bound by a proposed enterprise agreement may be indicated by ballot or in some other way. (1b) If a ballot of employees is taken— (a) SAET must be satisfied that— (i) all employees were given a reasonable opportunity to participate in the ballot; and (ii) the ballot was conducted in accordance with the rules for the conduct of ballots (if any) laid down by regulation; and (iii) a majority of the employees casting valid votes at the ballot voted in favour of the proposal; and (b) if SAET is so satisfied, it will be presumed that a majority of the total number of the employees (including those who did not vote at the ballot) is in favour of the proposal. (1c) In deciding whether an agreement is in the best interests of an employee with a disability, SAET must have regard to the Supported Wage System of the Commonwealth (or any system that replaces it), and any other relevant national disability standard identified by or under the regulations. (2) SAET must refuse to approve an enterprise agreement if a provision of the agreement discriminates against an employee because of, or for reasons including, race, colour, sex, sexual preference, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. (3) SAET must not approve an enterprise agreement if the agreement applies to part of a single business or a distinct operational or organisational part of a business and SAET considers that— (a) the agreement does not cover employees who should be covered having regard to— (i) the nature of the work performed by the employees whom the agreement does cover; and (ii) the relationship between that part of the business and the rest of the business; and (b) it is unfair that the agreement does not cover those employees. (4) In deciding whether to approve an enterprise agreement, SAET must identify the employees (if any) who are covered by the agreement but whose interests may not have been sufficiently taken into account in the course of negotiations and must do whatever is necessary to ensure that those employees understand the effect of the agreement and their interests are properly taken into account. (5) Despite subsection (1)(e)(ii) and (iii), a Full Bench of SAET may, on referral of an enterprise agreement by a member of SAET who considered the agreement in the first instance, approve the agreement if SAET is satisfied that— (a) a majority of at least two-thirds of the total number of employees to be covered by the agreement is in favour of making the agreement; and (b) the enterprise is suffering significant economic difficulties; and (c) the agreement would make a material contribution to the alleviation of those difficulties; and (d) there are reasonable prospects of the economic circumstances of the enterprise improving within the term of the agreement; and (e) having regard to any relevant award under this Act (which should be considered as a whole) the agreement does not substantially disadvantage the employees covered by the agreement. (6) An enterprise agreement may be referred to a Full Bench of SAET for approval if the member of SAET before whom the question of approval comes in the first instance is in serious doubt about whether the agreement should be approved. (7) If an enterprise agreement is to be entered into on a provisional basis— (a) the prescribed provisions do not apply to its approval under this section; but (b) the agreement may only be approved on condition that— (i) the agreement is to be renegotiated between the employer and the group of employees within a period (not exceeding 6 months) SAET considers appropriate in the circumstances and fixes on approving it; and (ii) if, in the course of the renegotiation, the employer and the group1 reach agreement (either in the same or on different terms), the agreement is, on its approval under this Part, to take the place of the provisional agreement and, if agreement is not reached, the provisional agreement lapses at the end of the period fixed for its renegotiation. Explanatory note— The prescribed provisions are subsection (1)(a), (b), (c) and subsections (4) and (5). (9) If SAET is of the opinion that grounds may exist for withholding approval of an enterprise agreement but— (a) an undertaking is given to SAET by one or more of the persons who are to be bound by the agreement (or by a duly authorised representative on their behalf) about how the agreement is to be interpreted or applied; and (b) SAET is satisfied that the undertaking adequately deals with the aspects of the agreement that might otherwise lead SAET to withhold its approval, SAET may incorporate the undertaking as part of the agreement, or amend the agreement to conform with the undertaking, and approve the agreement in its modified form. (10) Before SAET rejects an application for approval for an enterprise agreement on the ground that its provisions do not meet the criteria for approval, it should identify the aspects of the agreement that are of concern to SAET and allow a reasonable opportunity for the renegotiation of those aspects of the agreement. (11) SAET may approve an enterprise agreement without proceeding to a formal hearing if SAET— (a) is satisfied on the basis of documentary material submitted in support of the application that the agreement should be approved; and (b) has given public notice of its intention to approve the agreement in accordance with the rules. 1 The group may, if the appropriate authorisation exists, be represented in the negotiations by an association or associations of employees—See section 75. 80—Extent to which aspects of negotiations and terms of the agreement are to be kept confidential (1) An association that enters into an enterprise agreement as representative of a group of employees, must not disclose to the employer which employees authorised the association to act on their behalf. (a) an association, if authorised in writing by an employee, may disclose to an employer that the association is authorised to act on behalf of the employee; and (b) an association may be authorised by SAET to disclose to an employer the identity of employees who authorised the association to act on their behalf and may be required by SAET to disclose the identity of those employees to SAET. (3) An enterprise agreement, once approved, must be lodged in the Registrar's office and must, subject to an order under subsection (4), be available for public inspection. (4) SAET may, if satisfied that an order under this subsection is justified by the exceptional nature or circumstances of the case, declare that an enterprise agreement or a particular part of an enterprise agreement is to be kept confidential to the persons bound by it, and make an order suppressing public disclosure of the agreement or the relevant part of the agreement. (5) A person must not contravene an order of SAET under subsection (4). 81—Effect of enterprise agreement (1) An enterprise agreement prevails over a contract of employment to the extent the agreement is inconsistent with the contract. (2) However, if an employer and employee agree, at or after the time of entering into an enterprise agreement, that a term of a contract of employment that is more beneficial to an employee than the corresponding provision of the enterprise agreement is to prevail despite the enterprise agreement, the contractual term prevails over the corresponding provision of the enterprise agreement. (3) An enterprise agreement operates to exclude the application of an award only to the extent of inconsistency with the award. (4) Subject to subsection (5), if— (a) an enterprise agreement applies to the employees or a particular class of employees engaged in a particular business or undertaking; and (b) a new employer becomes the successor, transmittee or assignee of the whole or part of the business or undertaking, the new employer succeeds to the rights and obligations of the employer under the enterprise agreement. (5) If— (a) an employer is bound by an enterprise agreement (the outgoing employer); and (b) another employer (the incoming employer) then becomes, or is likely to become at a later time, the successor, transmittee or assignee of the whole or part of the business or undertaking of the outgoing employer, SAET may, on application under this subsection, by order— (c) vary the enterprise agreement; or (d) rescind the enterprise agreement. (6) An application under subsection (5) may be made— (a) by the outgoing employer (including such an employer who was previously an incoming employer), while he or she is still the employer under the enterprise agreement; or (b) by the incoming employer after he or she takes over the whole or a part of the business or undertaking of the outgoing employer; or (c) by an employee bound by the enterprise agreement (or a group of such employees) after the incoming employer takes over the whole or a part of the business or undertaking of the outgoing employer; or (d) by a registered association acting on behalf of an employee or a group of employees bound by the enterprise agreement after the incoming employer takes over the whole or a part of the business or undertaking of the outgoing employer. (7) SAET may make an order on application under subsection (5) if (and only if)— (a) the order only relates to provisions that regulate the performance of duties by employees or that relate to the remuneration of employees; and (b) SAET is satisfied that exceptional circumstances exist justifying the making of the order; and (c) SAET is satisfied— (i) that the order will not disadvantage employees in relation to their terms and conditions of employment; or (ii) that the order will assist in a reasonable strategy on the part of the employer to deal with a short-term crisis in, and to assist in the revival of, the relevant business or undertaking. (8) For the purposes of subsection (7), an order disadvantages an employee or employees in relation to their terms and conditions of employment if, on balance, its making would result in a reduction in the overall terms and conditions of employment of that employee or those employees. (9) SAET must, in making an order under subsection (5), take into account the length of time remaining until the end of the term of the enterprise agreement. (10) An order under subsection (5)— (a) must not take effect before the transfer of the relevant business or undertaking to the incoming employer; (b) may be made on the basis that the incoming employer will only be bound by the enterprise agreement for a limited period of time (and then the enterprise agreement will be taken to be rescinded); (c) may be made on the basis that any variation to the enterprise agreement will only have effect for a limited period of time. (11) Nothing in this section limits the ability to vary or rescind an enterprise agreement under another provision. 82—SAET's jurisdiction to act in disputes under an enterprise agreement (1) An enterprise agreement cannot limit— (a) SAET's powers of conciliation; or (b) SAET's powers to settle industrial disputes between the employer and the employees bound by the agreement. (a) before SAET intervenes in an industrial dispute between an employer and employees bound by an enterprise agreement, SAET should ensure that the procedures laid down in the agreement for settling industrial disputes have been followed and have failed to resolve the dispute; and (b) a determination made by SAET in settlement of such a dispute— (i) must not be made in relation to a condition of employment that is a subject matter of the agreement (unless the determination is to correct an ambiguity or uncertainty in the agreement); and (ii) must be consistent with the agreement. (3) SAET may, in acting under this section, settle a dispute over the application of an enterprise agreement. 83—Duration of enterprise agreement (1) An enterprise agreement is to be made for a term (not exceeding 4 years) stated in the agreement. (2) At least 28 days before the end of the term of an enterprise agreement, SAET must give written notice to the parties to the agreement advising them that the term of the agreement is about to end. (3) After giving the notice, SAET may, on its own initiative or on the application of a party, invite the parties to an enterprise agreement to a conference to explore the possibility of renegotiating the agreement. (4) Despite the expiration of the term stated in the enterprise agreement, the agreement continues in force until superseded or rescinded. 84—Power of SAET to vary or rescind an enterprise agreement (1) SAET may vary an enterprise agreement— (a) to give effect to an amendment agreed between the employer and a majority of the employees currently bound by the agreement; or (b) to correct an ambiguity or uncertainty in the agreement; or (c) to bring the agreement into conformity with an undertaking on the basis of which the agreement was approved. (2) In deciding whether to vary an enterprise agreement, SAET must (unless the variation is merely to correct an ambiguity or uncertainty) apply the same tests as apply to the approval of an enterprise agreement. (3) SAET may rescind an enterprise agreement during its term if satisfied that the employer and a majority of the employees currently bound by the agreement want it rescinded. (4) A party to an enterprise agreement, an employee bound by the agreement, or a registered association with at least 1 member who is bound by the agreement, may apply to SAET for an order rescinding the agreement after the end of the term of the agreement. (5) On receiving an application for rescission under subsection (4), SAET must take such steps as it considers appropriate to obtain the views of the persons bound by the agreement about whether the agreement should be rescinded. (6) If on an application under subsection (4) SAET is satisfied— (a) that the employer or a majority of the employees bound by the agreement want it rescinded; and (b) that the rescission of the agreement will not unfairly advance the bargaining position of a particular person or group in the circumstances of the particular case, SAET may rescind the agreement. 85—SAET may release party from obligation to comply with enterprise agreement (1) If an employer or employee bound by an enterprise agreement engages in industrial action in relation to a matter dealt with in the agreement, SAET may, on application by another person bound by the agreement who is affected by the industrial action, order that the applicant be released from the agreement or that the terms of the agreement be varied in a specified way. (2) Subject to the terms of an enterprise agreement, SAET may, on application by a person bound by the agreement, include, omit or vary a term authorising the employer to stand down an employee. (3) SAET may only make an order under this section if satisfied it is fair and reasonable to do so. 86—Limitation on SAET's powers SAET has no power to vary or rescind an enterprise agreement apart from the powers expressly conferred on SAET by this Part. 87—Representation An association of employers or employees may, subject to the provisions of any relevant enterprise agreement1, represent members of the association in negotiations and proceedings under this Part. 1 See section 77(1)(d). 88—Confidentiality (1) If an enterprise agreement prohibits the disclosure of information of a confidential nature, a person who discloses the information contrary to the agreement is guilty of an offence. (2) However, an enterprise agreement cannot prohibit the disclosure of information of a statistical nature to the Minister. Part 3—Regulation of industrial matters by award Division 1—Awards generally 90—Power to regulate industrial matters by award (1) SAET may make 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. 90A—Equity in remuneration In making an award regulating remuneration, SAET must take all reasonable steps to ensure that the principle of equal remuneration for men and women doing work of equal or comparable value is applied (insofar as may be relevant). 91—Who is bound by award (1) An award of SAET is binding on all persons expressed to be bound by the award. (2) If— (a) an award is expressed to apply to a particular employer, or to an employer engaged in a particular business or undertaking (the outgoing employer); and (b) another employer (the incoming employer) becomes the successor, transmittee or assignee of the whole or part of the business or undertaking of the outgoing employer, the incoming employer succeeds to rights and obligations of the outgoing employer under the award. (3) Subsection (2) operates subject to any provision made by SAET (on application under this Act) to vary or rescind the relevant award. 92—Retrospectivity (1) An award of SAET has, if it so provides, retrospective operation. (2) However, an award cannot operate retrospectively from a day antecedent to the day on which the application for the award was lodged with SAET unless— (a) the date of operation is fixed by consent of all parties to the proceedings; or (b) there is a nexus between the award and— (i) another award of SAET; or (ii) a fair work instrument under the Commonwealth Act, and, in view of the nexus, it is imperative that there should be common dates of operation; or (c) the award gives effect, in whole or part and with or without modification, to principles, guidelines or conditions relating to remuneration enunciated or laid down in, or attached to, a relevant decision or determination of the Fair Work Commission and there are reasons of exceptional cogency for giving it a retrospective operation. 93—Form of awards (1) An award must be expressed in plain English and must avoid unnecessary technicality and excessive detail. (2) An award must be settled and sealed by the Registrar. 94—Effect of awards on contracts An award prevails over a contract of employment to the extent the award is more beneficial to the employee than the contract. 95—Effect of multiple award provisions on remuneration (a) an employee is engaged in work of different classes; and (b) an award or awards fix different rates of remuneration for the different classes of work, the remuneration of the employee is to be calculated by reference to the time spent in, and the rate of remuneration for, each class of work. (2) However, an award may fix a special rate of remuneration for an employee engaged in work of different classes. 96—Duration of award An award continues in operation, subject to its terms, and subject to amendment or revocation, until superseded by a later award. 97—Effect of amendment or rescission of award The variation or rescission of an award does not affect— (a) legal proceedings previously commenced under or in relation to the award; or (b) rights existing at the time of the variation or rescission. 98—Consolidation or correction of awards (1) The Registrar must ensure that the text of any award that has been amended by another award is consolidated to include the amendments at least once in each period of 12 months. (2) The Registrar may, at any time, correct clerical or other errors in an award.

Div 1A

Special provision relating to child labour

Division 1A—Special provision relating to child labour 98A—Special provision relating to child labour (1) SAET may, by award— (a) determine that children should not be employed in particular categories of work or in an industry, or a sector of an industry, specified by the award; (b) impose special limitations on hours of employment of children; (c) provide for special rest periods for children who work; (d) provide for the supervision of children who work; (e) make any other provision relating to the employment of children as SAET thinks fit. (2) Subsection (1) does not limit the powers of SAET to make awards that relate to children under the other provisions of this Act. (3) Without limiting subsection (1), SAET must, within 1 year after the commencement of this section, commence reviewing the awards applying under this Act that may be relevant to the employment of children to ensure that they reflect appropriate standards with respect to the employment of children (insofar as may be relevant). (4) SAET must, in acting under subsection (3), give priority to those awards that relate to industries (or sectors of industries) where the employment of children is most prevalent. (5) SAET may, in making an award under this section, make a determination that only relates to children of a specified age or ages.

Div 1B

Special provision relating to trial work

Division 1B—Special provision relating to trial work 98B—Special provision relating to trial work (1) SAET may, by award— (a) determine that a person who undertakes a specified category of work (in any specified circumstances) on a trial basis in an industry, or a sector of an industry, specified by the award with a view to obtaining employment with the person from whom the work is performed is entitled to be paid for that work in accordance with the terms of the award; (b) impose limitations of the performance of work on a trial basis in an industry, or a section of an industry, specified in the award; (c) make any other provision relating to work on a trial basis as SAET thinks fit, if SAET is of the opinion that action under this section is justified in order to prevent the abuse of the performance of work on a trial basis in the relevant circumstances. (2) SAET may, in setting rates of pay with respect to particular work under subsection (1), specify different rates according to the different levels of skill or experience that persons undertaking the work may possess. (3) Subsection (1) does not limit the powers of SAET to make any award under the other provisions of this Act. (4) Subsection (1) applies even though the persons to whom an award will relate will not be employees for the purposes of this Act. (5) A person who is entitled to be paid under an award under this section is entitled to recover the amount that should be paid as if the person were an employee of the person for whom the work was performed. Division 2—Review of awards 99—Triennial review of awards (1) SAET must review each award at least once in every three years. (1a) However, in the case of the first review to be conducted after the commencement of this Act, the period allowed for the review is extended to 31 December 1997. (2) At least 21 days before it begins a review under this section, SAET must give notice of the review— (a) to associations and other persons that appeared in the proceedings in which the award was made; and (b) by notice in a newspaper circulating generally throughout the State. (3) On a review under this section, SAET may vary an award to ensure that the award— (a) is consistent with the objects of this Act; and (b) affects only to the minimum extent necessary the way work is carried out; and (c) leaves the practical application of its provisions to be worked out in the workplace; and (d) is consistent with industrial, technological, commercial and economic developments applicable to the relevant industry; and (e) complies with other requirements prescribed by regulation. (4) If, on review of an award it appears that the award is obsolete, SAET should rescind the award. (5) Before it varies or rescinds an award under this section, SAET must give the parties to the award a reasonable opportunity to make submissions on the proposed action, and take any submissions made by the parties into consideration.

Part 3A

Outworkers

Part 3A—Outworkers 99A—Interpretation apparent responsible contractor—see section 99D; code of practice means the code of practice in operation under Division 2 (if any); remuneration includes— (a) any remuneration or other amount, including commission, payable in relation to work done by an outworker; (b) any amount payable to an outworker in respect of annual leave or long service leave; (c) any amount for which an outworker is entitled to be reimbursed or compensated for under the code of practice; unpaid remuneration means remuneration that is the subject of a claim under section 99D. 99B—Responsible contractors (1) Subject to this section, a person will be taken to be a responsible contractor in relation to an outworker or a group of outworkers engaged (or previously engaged) under a contract of employment with someone else if the person is a person who initiates an order for the relevant work (other than (if relevant) as a purchaser at the point of sale by retail), or distributes the relevant work (even though there may then be a series of contracts before the work is actually performed by the outworker or outworkers). (2) The fact that a person is to be taken to be a responsible contractor for the purposes of this Part does not affect any obligation of another person as an employer under a contract of employment. (3) A person whose sole business in connection with the clothing industry is the sale of clothing (and associated items) by retail will not be taken to be a responsible contractor under this section (but may be taken to be an employer under a contract of employment between the person and an outworker). Division 2—Code of practice 99C—Code of practice (1) The Governor may, by regulation, establish a code of practice for the purpose of ensuring that outworkers are treated fairly in a manner consistent with the objects of this Act. (2) The code of practice may make different provision according to the matters or circumstances to which they are expressed to apply. (3) The code of practice may apply, adopt or incorporate, with or without modification, a standard or other document prepared or published by a body specified in the code, as in force at a particular time or as in force from time to time. (4) A code of practice may— (a) require employers or other persons engaged in an industry, or a sector of an industry, specified or described in the code to adopt the standards of conduct and practice with respect to outworkers set out in the code; and (b) make arrangements relating to the remuneration of outworkers, including by specifying matters for which an outworker is entitled to be reimbursed or compensated for with respect to his or her work or status as an outworker; and (c) make provision to assist outworkers to receive their lawful entitlements; and (d) make such other provision in relation to the work or status of outworkers as the Governor thinks fit. (5) SAET may make an award incorporating any term of the code of practice or make any other provision to give effect to the code of practice. (6) Subsection (5) does not limit the powers of SAET to make awards that relate to outworkers under the other provisions of this Act. (7) If there is an inconsistency between an award and the code of practice, the award prevails to the extent of the inconsistency.

Div 3

Recovery of unpaid remuneration

Division 3—Recovery of unpaid remuneration 99D—Outworker may initiate a claim against a responsible contractor (1) An outworker may initiate a claim for unpaid remuneration (an unpaid remuneration claim) against a person identified by the outworker as the person who the outworker believes on reasonable grounds to be a responsible contractor in relation to the outworker (the apparent responsible contractor). (2) The unpaid remuneration claim may be for all or any of the remuneration that is payable to the outworker on account of work performed by the outworker that was (or apparently was) initiated or distributed by the apparent responsible contractor (and it does not matter that there may be more than 1 responsible contractor). (3) The unpaid remuneration claim must be made within 6 months after the relevant work is completed by the outworker. (4) The unpaid remuneration claim is to be made by serving a written notice on the apparent responsible contractor that— (a) claims payment of the unpaid remuneration; and (b) sets out the following particulars: (i) the name of the outworker; and (ii) the address at which the outworker may be contacted; and (iii) a description of the work that has been performed; and (iv) the date or dates on which the work was performed; and (v) the amount of unpaid remuneration claimed in respect of the work. (5) The particulars set out in the unpaid remuneration claim must be verified by statutory declaration. (6) A claim under this section may only be made in respect of work performed after the commencement of this section. 99E—Liability of apparent responsible contractor on a claim (1) Except as provided by subsection (4), an apparent responsible contractor served with an unpaid remuneration claim is liable for the amount of unpaid remuneration claimed. (2) An apparent responsible contractor may, within 14 days after being served with an unpaid remuneration claim, refer the claim to another person the apparent responsible contractor knows or has reason to believe is the employer of the outworker under this Act (the designated employer). (3) An apparent responsible contractor refers an unpaid remuneration claim under subsection (2) by— (a) advising the outworker who has made the claim, in writing, of the name and address of the designated employer; and (b) serving a copy of the claim (a referred claim) on the actual employer. (4) The apparent responsible contractor is not liable for the whole or any part of an amount of an unpaid remuneration claim for which the designated employer served with a referred claim accepts liability in accordance with section 99F. 99F—Liability of actual employer to which a claim is referred (1) A designated employer served with a referred claim under section 99E may, within 14 days after being served, accept liability for the whole or any part of an amount of unpaid remuneration claimed by paying it to the outworker concerned. (2) A designated employer who accepts liability under subsection (1) must serve notice in writing on the apparent responsible contractor of that acceptance and of the amount paid. 99G—Recovery of amount of unpaid remuneration (1) An amount payable to an outworker by an apparent responsible contractor that is not paid in accordance with the requirements of this Division may be recovered by the outworker as a monetary claim under section 9. (3) In proceedings brought under this section, an order for the apparent responsible contractor to pay the amount claimed must be made unless the apparent responsible contractor satisfies the South Australian Employment Court that the work was not performed or that the amount of the claim for the work in the unpaid remuneration claim is not the correct amount in respect of the work. 99H—Ability of responsible contractor to claim contribution or to make deduction (1) If an apparent responsible contractor pays to the outworker concerned the whole or any part of the amount of any unpaid remuneration claim under this Division, the apparent responsible contractor may— (a) recover the amount paid from a related employer; or (b) deduct or set-off the amount paid from or against any amount that the apparent responsible contractor owes to a related employer (whether or not in respect of work that has been carried out by the outworker). (2) For the purposes of subsection (1), a related employer in relation to an apparent responsible contractor is— (a) the actual employer of the outworker concerned; or (b) another responsible contractor whose contractual relationship with the outworker concerned on account of the work performed by the outworker is, when all relevant contractual relationships are considered, closer than the contractual relationship between the apparent responsible contractor and the outworker. 99I—Offence provision (a) by intimidation or by any other act or omission, intentionally hinder or prevent a person from making an unpaid remuneration claim under section 99D; or (b) make a statement that the person knows to be false or misleading in a material particular in any referred claim under section 99E or any notice served for the purposes of section 99F; or (c) serve a referred claim on a person under section 99E that the person does not know, or have reasonable grounds to believe, is an actual employer. 99J—Non-derogation Nothing in this Division— (a) limits or excludes any other right of recovery of remuneration of an outworker, or any liability with respect to payment of remuneration to an outworker (whether arising under this Act or any other Act or law or whether arising by virtue of any award or other industrial instrument or by virtue of an agreement or otherwise); or (b) limits or excludes any right of recovery arising under any other law with respect to any amount of money owed by a responsible contractor to another person. Part 4—General principles affecting determination of working conditions 100—Adoption of principles affecting determination of remuneration and working conditions (1) SAET may, on its own initiative, or on the application of— (a) the Minister; or (b) the United Trades and Labor Council; or (c) the South Australian Employers' Chamber of Commerce and Industry Incorporated, make a declaration adopting in whole or in part, and with or without modification, principles, guidelines, conditions, practices or procedures enunciated or laid down in, or attached to, a decision or determination of the Fair Work Commission. (2) However, a declaration may only be made if the terms of the declaration are consistent with the objects of this Act. (3) A declaration under this section may be made on the basis that it is to apply in relation to (and prevail to the extent of any inconsistency with)— (a) awards generally; or (b) awards generally, other than a specified award or awards; or (c) a specified award or awards (and no other awards). (4) In addition, a party to an award that is affected by a declaration under this section may, within 28 days after the declaration is made, apply to SAET to have the award excluded from the declaration (or a part of the declaration), despite the operation of subsection (3). (5) SAET may grant an application under subsection (4) on such conditions as SAET thinks fit. 100A—State Wage Case (1) A Full Bench of SAET must conduct an annual review of— (a) the minimum standard of remuneration under section 69; and (b) minimum wage rates in awards; and (c) minimum work-related allowances and loadings in awards. (2) The review must commence within 3 months of the conclusion of the Annual Wage Review conducted by the Fair Work Commission. (3) Subject to subsection (5), in conducting the review, SAET may make a declaration under section 100(1) adopting the outcomes of the Annual Wage Review without receiving evidence or submissions, or conducting a hearing, if there is no objection from an interested party. (4) If SAET proposes to act in accordance with the above, SAET must— (a) take reasonable steps to ensure that all persons who are likely to have an interest in the review are given a reasonable opportunity to appear and be heard before SAET; and (b) at least 21 days before making the declaration, publish a notice in a manner prescribed by the rules— (i) setting out the terms of the proposed declaration; and (ii) advising that, in the absence of any objection from an interested party, SAET will make the declaration on its own initiative. (5) If there is an objection from an interested party, SAET must conduct the review by considering the matter de novo. (6) In this section— interested party means— (a) the Minister; or (b) an employer or group of employers; or (c) a registered employee association; or (d) the United Trades and Labor Council (trading as SA Unions). 101—State industrial authorities to apply principles (1) In arriving at a determination affecting remuneration or working conditions, a State industrial authority must have due regard to and may apply and give effect to principles, guidelines, conditions, practices or procedures adopted by SAET under this Part. (2) However, principles adopted under this Part are not applicable to enterprise agreements. (3) In this section— State industrial authority means— (b) the Remuneration Tribunal; or (c) the Commissioner for Public Sector Employment; or (d) another person or body declared by regulation to be a State industrial authority. Part 5—Enforcement of obligations arising from employment Division 1—Records to be kept by employers 102—Records to be kept (1) An employer must, subject to subsections (6) and (7), keep for all employees— (a) a record of the names and addresses of the employees; and (b) a record (a time book) in which are entered as far as practicable— (i) each employee's times of beginning and ending work on each day (including a note of time allowed for meals and other breaks); and (ii) the wages paid to each employee and the date of each payment of wages; and (c) a record of annual leave, sick leave, parental leave and long service leave granted to each employee; and (d) a record of the date of birth of employees under 21 years of age; and (e) other records prescribed by regulation. (2) The records must be kept in the English language. (2a) The records may be kept in writing or in electronic form. (2b) The information kept in the time book must be verified as follows: (a) if the time book is kept in writing, it must, if practicable, be verified by signature of the employee on, or as soon as possible after, each pay day and the signature constitutes evidence of the correctness of the entries; (b) if the time book is kept electronically, a printout of the relevant entries must, if practicable, be verified by signature of the employee on, or as soon as possible after, each pay day and the employer must keep the signed printouts as evidence of the correctness of the entries. (3) An employer must retain a record kept under this section for 7 years after the date of the last entry made in it. (4) An employer must— (a) at the reasonable request of an employee or former employee, produce a record relating to the employee or former employee kept under this section and permit the employee or former employee to make copies of, or take extracts from, the record; or (b) at the reasonable request of an inspector, produce a record relating to a specified employee or former employee kept under this section and permit the inspector to make copies of, or take extracts from, the record; or (c) at the reasonable request of an inspector, produce reasonable evidence of the payment of wages and details of how the amounts of the payments were calculated and details of any amounts that remained unpaid and how they are calculated. (5) When a business, or part of a business, is transferred or assigned, the transferor or assignor must transmit to the transferee or assignee all records referred to in this section relating to employees who become employees of the transferee or assignee. (5a) On the transmission of the records, the employer's obligations in relation to the records passes to the transferee or assignee. (6) An award or enterprise agreement may direct that, in relation to some or all of the persons bound by the award or agreement— (a) a time book need not be kept; or (b) specified information need not be included in the time book. (7) The requirement to keep a time book does not apply with respect to any employee who is not paid on an hourly basis, or on a basis under which the employee's remuneration varies according to the time worked. (8) When an employer makes a payment of wages, the employer must provide the employee with a pay slip showing— (a) the name of the employer; and (b) the amount of the payment; and (c) the period of employment to which the payment relates; and (d) if the employee is paid on an hourly basis, or on a basis on which the rate of pay varies according to the time worked— (i) the number of hours worked by the employee during the period to which the payment relates (distinguishing between ordinary time and overtime); and (ii) the rate or rates of pay on which the payment is based; and (e) if the employer has made a contribution to a superannuation fund for the benefit of the employee—the name of the fund to which the contribution was made and the amount of the contribution. 103—Employer to provide copy of award or enterprise agreement (1) An employer who is bound by an award or enterprise agreement must, at the request of an employee bound by the award or enterprise agreement, produce a copy of the award or enterprise agreement as soon as practicable after the request and allow the employee a reasonable opportunity to examine it. (2) If an employee bound by an award or enterprise agreement asks the employer for a copy of the award or agreement, the employer must give the employee a copy of the award or agreement within 14 days after the date of the request. (3) However, an employer is not obliged to comply with a request under subsection (2) if— (a) the employer has previously given the employee a copy of the award or agreement within the preceding 12 months; or (b) SAET has, on the application of the employer, relieved the employer from the obligation to comply with the request. (4) An employer must ensure that a copy of an award or enterprise agreement is exhibited at a place that is reasonably accessible to the employees bound by the award or agreement. (5) However, an enterprise agreement, or a part of an enterprise agreement, that SAET has suppressed from public disclosure under this Act1 need not be exhibited under subsection (4). 1 See section 80. Division 2—Civil penalty provisions 104—Obligation to pay entitlements (1) An employer must not contravene a provision of this Act, a workplace law or an industrial instrument which requires the employer to pay an amount to, or on behalf of, an employee in relation to the performance of work. Maximum civil penalty: $25 000. (2) For the purpose of subsection (1), unless otherwise provided by this Act, or the relevant workplace law or industrial instrument, the employer must pay an amount referred to in subsection (1)— (a) in full, subject to any deduction authorised by or under a law of the State or the Commonwealth or an order of a court; and (b) by cash, cheque, money order or payment into a specified account with a financial institution; and (c) at least monthly. (3) For the avoidance of doubt, amounts referred to in subsection (1) include the following: (a) wages; (b) loadings; (c) monetary allowances; (d) overtime or penalty rates; (e) leave payments; (f) incentive-based payments and bonuses; (g) superannuation contributions; (h) payments under the Work Health and Safety Act 2012 in relation to training and the performance of functions as a health and safety representative. (4) A civil penalty may only be imposed on an employer for a contravention of subsection (1) if— (a) the employer's conduct constituting the contravention was deliberate; and (b) the employer's conduct constituting the contravention was part of a systematic pattern of conduct relating to 1 or more employees. (5) For the purpose of subsection (4)(a), where the employer is the Crown or a body corporate, proof that the Crown or body corporate (as the case may be) expressly, tacitly, or impliedly authorised the conduct constituting the contravention will be taken to be proof that the employer's conduct constituting the contravention was deliberate. This does not limit sections 236 or 236B. (6) For the purpose of subsection (4)(b), in determining whether the employer's conduct constituting the contravention was part of a systematic pattern of conduct, a court may have regard to: (a) the number of contraventions committed by the employer; (b) the period over which the contraventions occurred; (c) the number of employees affected by the contraventions; (d) the employer's response, or failure to respond, to any complaints made about the contraventions; (e) whether the employer failed to make or keep, in accordance with this Act or a relevant industrial instrument or workplace law, an employee record relating to the conduct constituting the contraventions; (f) whether the employer failed to give, in accordance with this Act or a relevant industrial instrument or workplace law, a pay slip relating to the conduct constituting the contraventions. (7) Subsection (6) does not limit the matters that a court may have regard to. (8) Section 104A(4) does not apply for the purposes of determining whether an employer's conduct was part of a systematic pattern of conduct. 104A—Proceedings for contravention of civil penalty provision (1) A provision of this Act is a civil penalty provision if the words "Maximum civil penalty" and one or more amounts by way of monetary penalty are set out at the foot of the provision. (2) The South Australian Employment Court may, on application, order a person to pay a civil penalty that the Court considers is appropriate if the Court is satisfied, on the balance of probabilities, that the person has contravened a civil penalty provision. (3) The civil penalty imposed by the South Australian Employment Court must not exceed the amount specified by this Act as the maximum civil penalty in relation to that contravention. (4) Two or more contraventions of a civil penalty provision are taken to constitute a single contravention if the contraventions were committed by the same person and arose out of a course of conduct by the person. (5) Subsection (4) does not apply to a contravention of a civil penalty provision that is committed by a person after the South Australian Employment Court has imposed a civil penalty on the person for an earlier contravention of the provision. (6) An application under this section may be made by— (a) an employee affected by the contravention; or (b) a registered association that is entitled to represent the industrial interests of an employee affected by the contravention; or (c) an inspector. (7) The South Australian Employment Court may order that the civil penalty, or a part of the penalty, be paid to— (a) the State; or (b) a particular organisation; or (c) a particular person. (8) The civil penalty may be recovered as a debt due to the person to whom the penalty is payable. (9) Proceedings under this section may be commenced at any time within 6 years after the day on which the relevant contravention occurred. (10) For the avoidance of doubt, the Court may make a civil penalty order under this section in addition to 1 or more orders under section 9 or section 12 of this Act. 104B—Civil rules and procedure (1) The contravention of a civil penalty provision is not an offence. (2) The South Australian Employment Court must apply the rules of evidence and procedure for civil proceedings when hearing proceedings for a civil penalty order. The rules of evidence and procedure for civil proceedings in the South Australian Employment Court include the principles set out in section 32 of the South Australian Employment Tribunal Act 2014. (3) The South Australian Employment Court must not make an order against a person under this Division if an order has been made against the person under a civil penalty provision under an Act of the State or the Commonwealth in relation to conduct that is the same, or substantially the same, as the conduct constituting the contravention. 104C—Costs A party to proceedings for a civil penalty order may only be ordered to pay costs incurred by another party to the proceedings if— (a) the Court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the Court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs.

Part 6

Unfair dismissal

Part 6—Unfair dismissal 105—Interpretation adjudicating authority means— (b) any other court, tribunal, commission or other authority with power to grant relief for wrongful or unfair dismissal; non-award employee means an employee whose employment is not covered by an industrial instrument. 105A—Application of Part (1) This Part does not apply— (a) to a non‑award employee whose remuneration immediately before the dismissal took effect is $100 322 (indexed) or more a year; or (b) an employee who is an apprentice. An apprentice may apply to SAET under the South Australian Skills Act 2008 in respect of disputes or grievances involving their employer. (2) The regulations may exclude from the operation of this Part or specified provisions of this Part— (a) employees serving a period of probation or a qualifying period providing that the period— (i) is determined in advance; and (ii) is reasonable having regard to the nature and circumstances of the employment; and (iii) does not exceed 12 months; or (b) employees engaged on a casual basis for a short period except where— (i) the employee has been engaged by the employer on a regular and systematic basis extending over a period of at least nine months; and (ii) the employee has, or would have had, a reasonable expectation of continuing employment by the employer; or (c) employees whose terms and conditions of employment are governed by special arrangements giving rights of review of, or appeal against, decisions to dismiss from employment which, when considered as a whole, provide protection that is at least as favourable to the employees as the protection given under this Part; or (d) employees in relation to whom the application of this Part or the specified provisions of this Part causes or would cause substantial difficulties because of— (i) their conditions of employment; or (ii) the size or nature of the undertakings in which they are employed; or (e) employees of any other class. (3) To the extent that a regulation under subsection (2)(c), (d) or (e) is inconsistent with the Termination of Employment Convention it is invalid. (4) If a contract provides for employment for a specified period or for a specified task, this Part does not apply to the termination of the employment at the end of the specified period, or on completion of the specified task, unless the employee has, on the basis of the employer's conduct, a clear expectation of continuing employment by the employer. Division 2—Application for relief 106—Application for relief (1) If an employer dismisses an employee, the employee may, before the end of a period of 21 days from the date the dismissal takes effect, apply to SAET for relief under this Part. (2) An employee cannot simultaneously bring proceedings for dismissal before 2 or more adjudicating authorities. (3) If an employee takes proceedings for dismissal under this Part or some other law and the adjudicating authority before which the proceedings are brought considers that the proceedings might have been more appropriately brought under another law before another adjudicating authority— (a) the adjudicating authority may, after hearing the parties, refer the proceedings to the other adjudicating authority to be dealt with under that other law; and (b) the adjudicating authority to which the proceedings are referred must deal with the proceedings as if they had been commenced before that adjudicating authority under the relevant law. Suppose that an employee brings proceedings under the Equal Opportunity Act 1984 seeking relief for dismissal on the ground that the dismissal constitutes an act of discrimination in respect of which a remedy is available under that Act. The relevant authorities under that Act might, if of the opinion that the proceedings might have been more appropriately brought before SAET under this Act, refer the proceedings to SAET. The proceedings would then proceed in SAET as if they had been commenced by an application for relief under this Part. (3a) The period that applies under subsection (1) does not apply in a case involving the referral of proceedings to SAET under another law. (4) No fee may be imposed with respect to an application for relief under this Part.

Div 4

Determination of application

Division 4—Determination of application 108—Question to be determined at the hearing (1) At the hearing of an application under this Part, SAET must determine whether, on the balance of probabilities, the dismissal is harsh, unjust or unreasonable. (2) In deciding whether a dismissal was harsh, unjust or unreasonable, SAET must have regard to— (a) the Termination of Employment Convention; and (b) the rules and procedures for termination of employment prescribed by or under Schedule 8; and (c) the degree to which the size of the relevant undertaking, establishment or business impacted on the procedures followed in effecting the dismissal; and (d) the degree to which the absence of dedicated human resource management specialists or expertise in the relevant undertaking, establishment or business impacted on the procedures followed in effecting the dismissal; and (e) whether the employer has failed to comply with an obligation under section 18 or 20 of the Return to Work Act 2014; and (f) any other factor considered by SAET to be relevant to the particular circumstances of the dismissal. (3) If a redundancy payment is made on the dismissal in accordance with a relevant industrial instrument, the dismissal cannot be regarded as harsh, unjust or unreasonable solely on the ground that the payment is inadequate. 109—Remedies for unfair dismissal from employment (1) If SAET is satisfied on application under this Part that an employee's dismissal is harsh, unjust or unreasonable, SAET may— (a) order that the applicant be re-employed in the applicant's former position without prejudice to the former conditions of employment; or (b) if it would be impracticable for the employer to re-employ the applicant in the applicant's former position, or re-employment in the applicant's former position would not, for some other reason, be an appropriate remedy—order that the applicant be re-employed by the employer in some other position (if such a position is available) on conditions determined by SAET; or (c) if SAET considers that re-employment by the employer in any position would not be an appropriate remedy—order the employer to pay to the applicant an amount of compensation determined by SAET. (1a) Re-employment is to be regarded as the preferred remedy, and SAET may only award an alternative remedy if satisfied that there are cogent reasons to believe that re-employment would not, in the circumstances of the particular case, be an appropriate remedy. (1b) However, SAET need not regard re-employment as the preferred remedy if the position to which the applicant would be re‑employed is in a business or undertaking where, at the time of SAET's decision on the application, less than 50 employees are employed. (2) If SAET makes an order for re-employment under this section, then, subject to any contrary direction of SAET— (a) the employee must be remunerated for the period intervening between the date that the dismissal took effect and the date of re-employment as if the employee's employment in the position from which the employee was dismissed had not been terminated; and (b) the employer is entitled to the repayment of any amount paid to the employee on dismissal on account of or arising from the dismissal; and (c) for the purposes of determining rights to annual leave, sick leave, long service leave, and parental leave, the interruption to the employee's continuity of service caused by the dismissal will be disregarded. (3) SAET must not order compensation exceeding 6 months' remuneration at the rate applicable to the dismissed employee immediately before the dismissal took effect, or $33 100 (indexed), whichever is the greater. (4) An order for the payment of a monetary amount under this section may provide for payment by instalments if— (a) SAET is satisfied that exceptional circumstances exist justifying the making of the order; and (b) insofar as the order compensates loss of remuneration—the instalments of compensation are at least as favourable to the employee as the payments of remuneration (to which the order relates) would have been if the employment had continued.

Div 5

Miscellaneous

Division 5—Miscellaneous 110—Costs (1) If an application under this Part proceeds to hearing and SAET is satisfied that a party to the proceedings clearly acted unreasonably in failing to discontinue or settle the matter before the hearing concluded, SAET may, on the application of the other party to the proceedings, make an order for costs (including—if relevant—the costs of representation) against the party. (2) If an employee discontinues proceedings under this Part more than 14 days after the conclusion of the conference of the parties, SAET may, on the application of the employer, make an order for costs (including—if relevant—the costs of representation) against the employee if SAET is satisfied that the employee has acted unreasonably. (3) An application for an order for costs under this section must be made within 14 days after the determination or discontinuance of the proceedings. 111—Decisions to be given expeditiously (1) SAET must hand down its determination on an application under this Part, and its reasons for the determination, within 3 months after the parties finish making their final submissions on the application. (2) The President may extend the time for handing down a determination, or the reasons for a determination, but only if there are special reasons in the circumstances of the individual case for doing so.

Part 7

Exemption from employment conditions

Part 7—Exemption from employment conditions 112—Slow, inexperienced or infirm workers (1) SAET may, on application by a slow, inexperienced or infirm employee, grant the employee a licence to work at a wage less than the minimum that would otherwise apply to the employee under this Act, an award or an enterprise agreement. (2) If it appears to SAET that an association may have an interest in an application under this section, it will give the association at least seven days notice of the time and place at which it intends to hear the application, and the association is then entitled to appear and be heard on the application. (3) SAET will not grant a licence until satisfied that the employee is, because of slowness, inexperience or infirmity, unable to obtain employment at the minimum wage fixed under this Act, an award or enterprise agreement. (4) A licence— (a) must specify the wage at which the worker is licensed to work; and (b) continues in force for 12 months but may be renewed from time to time for successive terms of 12 months. (5) An employer must not, without the consent of SAET, employ a number of licensed employees exceeding one-fifth of the total number of persons employed by the employer in the same class of work (but if the employer employs fewer than five employees in the relevant class of work, the employer may employ one licensed employee). (6) A person must not pay or offer to pay a slow, inexperienced or infirm employee a wage lower than specified in the licence. (7) If an award or enterprise agreement makes provision for the remuneration of employees who are under a disability that adversely affects work performance in some way, the award or enterprise agreement excludes from the ambit of this section an employee who comes within the terms of the relevant provision of the award or enterprise agreement. 113—Non-application of awards (1) This section applies to a person (an assisted person)— (a) who has an intellectual, psychiatric, sensory or physical impairment or a combination of such impairments; and (b) who is unlikely to obtain employment at ordinary rates of pay and needs substantial ongoing support to obtain or retain paid employment; and (c) who is being assisted or trained by an organisation or body— (i) that provides employment services to disabled workers; and (ii) that is declared by regulation to be a recognised organisation for the purposes of this section. (2) No award applies to work performed by an assisted person unless the award makes specific provision for assisted persons. (3) The regulations may exclude certain industrial matters affecting assisted persons from regulation by award. 114—Exemption for charitable organisations (1) If the Minister is satisfied that— (a) the objects of an organisation are charitable, religious or non-profit making; and (b) it is in the public interest to grant an exemption under this subsection, the Minister may, by notice in the Gazette, exempt all activities of the organisation, or specified activities of the organisation, from the operation of awards. (2) The Minister may, by notice in the Gazette, vary or revoke an exemption under subsection (1). Chapter 4—Associations Part 1—Freedom of association 115—Prohibited reason An employer acts for a prohibited reason if the employer discriminates against another person for one or more of the following reasons or for reasons that include one or more of the following: (a) because the other person is, has been or proposes to become an officer, delegate or member of an association; (b) because the other person is not, or does not propose to become, a member of an association; (c) because the other person— (i) has one or more employees who are not, or do not propose to become, members of an association; or (ii) has not paid, or does not propose to pay, a fee (however described) to an association; (d) because the other person has refused or failed to join in industrial action; (e) because the other person (being an employee) has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an association of which the employee is a member would be a party; (f) because the other person has made, proposes to make or has at any time proposed to make an application to an industrial authority for an order for holding a secret ballot; (g) because the other person has participated in, proposes to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial authority; (h) because the other person is entitled to the benefit of an instrument dealing with conditions of employment or an order of an industrial authority; (i) because the other person has made or proposes to make an inquiry or complaint to a person or body with power under a law relating to industrial relations to seek— (i) compliance with that law; or (ii) the enforcement of rights under an instrument dealing with conditions of employment; (j) because the other person has participated in, proposes to participate in, or has at any time proposed to participate in a proceeding under a law relating to industrial relations; (k) because the other person has given or proposes to give evidence in a proceeding under a law relating to industrial relations; (l) because an association is seeking better industrial conditions for the other person; (m) because the other person (being an employee) has absented himself or herself from work without leave if— (i) the absence was for the purpose of carrying out duties or exercising rights as an officer of an association; and (ii) the person applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; (n) because the other person, as an officer or member of an association, has done, or proposes to do, a lawful act within the officer's or member's authority under the rules of the association, for the purpose of furthering or protecting the industrial interests of the association. Division 2—Protection of freedom of association 116—Freedom of association (1) No person may be compelled to become, or remain, a member of an association. (2) A provision of a contract of employment, or an associated undertaking, to become or remain, or not to become or remain, a member of an association is void. 116A—General offences against the principle of freedom of association (a) require another to become, or remain, a member of an association; or (b) prevent another from becoming or remaining a member of an association of which the other person is, in accordance with the rules of the association, entitled to be a member; or (c) induce another to enter into a contract or undertaking not to become or remain a member of an association. 116B—Dismissal etc for prohibited reason (1) An employer must not, for a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee from employment; (b) injure an employee in employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ a person; (e) discriminate against a person in the terms or conditions on which the employer offers to employ the person. (2) A court by which an employer is convicted of an offence against this section may, on application by the employee (or prospective employee) against whom the offence was committed— (a) award compensation to the applicant for loss resulting from the commission of the offence; and (b) if the applicant was dismissed from employment—order the employer to re-employ the applicant on conditions determined by the court. 117—Prohibition of discrimination in supply or purchase of goods or services (1) A person who carries on a business involving the supply or purchase of goods or services must not discriminate against an employer by refusing to supply or purchase goods or services, or in the terms on which goods or services are supplied or purchased, on the ground that the employer's employees are, or are not, members of an association. (2) A person must not, on the ground that an employer's employees are, or are not, members of an association— (a) attempt to induce a person who carries on a business involving the supply or purchase of goods or services to discriminate against an employer by refusing to supply or purchase goods or services, or in the terms on which goods or services are supplied or purchased; or (b) attempt to prevent a person who carries on a business involving the supply or purchase of goods or services from supplying or purchasing goods or services to or from the employer. (3) This section does not prevent an association from discriminating between members and non-members of the association. 118—Conscientious objection (1) If a person satisfies the Registrar by the evidence required by the Registrar that the person has a genuine conscientious objection based on religious belief to becoming a member of an association, the Registrar must issue a certificate of conscientious objection to the person. (2) The Registrar must cancel a certificate of conscientious objection if asked to do so by the person for whom it was issued. Part 2—Locally based associations 119—Eligibility for registration (1) The following associations are eligible for registration under this Part— (a) an association formed to represent, protect or further the interests of employers and consisting of two or more employers who employ, in aggregate, not less than 100 employees (whether or not the membership of the association includes persons who are not employers); (b) an association formed to represent, protect or further the interests of employees and consisting of not less than 100 employees (whether or not the membership includes persons who are not employees). (2) An organisation, or a branch, section or part of an organisation, registered under the Commonwealth (Registered Organisations) Act is not eligible for registration under this Part. 120—Application for registration (1) An association eligible for registration under this Part may apply to SAET (constituted as an industrial relations commission) for registration. (2) If an application for registration is made, the Registrar must— (a) publish notice of the application on a website determined by the Registrar; and (b) give notice of the application— (i) to any registered association the Registrar considers has a proper interest in the subject matter of the application; and (ii) in the case of an application for registration of an association that is an employee association—to the United Trades and Labor Council (trading as SA Unions). (3) The notice must contain a statement of the right of interested persons to lodge objections to the registration of the applicant association. 121—Objections A person may, within the time allowed by the Rules, object to the registration of the association. Division 2—Registration and incorporation 122—Registration of associations (1) SAET may, after considering objections to registration duly made in accordance with the Rules, register an association under this Part if satisfied— (a) that the association is eligible for registration under this Part; and (b) that the rules of the association conform with the requirements of this Part; and (c) that the prescribed conditions have been complied with; and (d) that the registration of the association would be consistent with the provisions and objects of this Act; and (e) that— (i) the association is entirely comprised of employees employed in a single business; or (ii) if the association is not an association of that kind—there is no other registered association to which the members of the association might conveniently belong; and (f) that the name of the applicant association would not cause confusion with the name of another registered association or with the name of an organisation registered under the Commonwealth (Registered Organisations) Act; and (g) in the case of an association of employees—that the association is not dependent for financial or other resources on an employer, employers, or an association of employers and is, in other respects, independent of control or significant influence by an employer, employers or an association of employers. (2) SAET may, in an appropriate case, waive compliance with any of the prescribed conditions referred to in paragraph (c) above. 123—Registration confers incorporation On registration of an association under this Part, the association becomes a body corporate— (a) with the name stated in its rules; and (b) with power to acquire, hold, deal with and dispose of real and personal property; and (c) with the other powers stated in its rules. Division 3—Rules 124—Rules The rules of an association registered under this Part— (a) must state the association's name; and (b) must conform with the prescribed conditions; and (c) must prescribe a procedure for resolution of disputes between the association and its members; and (d) must not impose on applicants for membership, or members, of the association conditions, obligations or restrictions that are oppressive, unreasonable or unjust. 125—Alteration of rules of registered association (1) An association registered under this Part may resolve to alter its rules. (2) The resolution must be passed in accordance with the relevant rules of the association unless the purpose of the proposed alteration is only to change the name of the association in which case a resolution passed by a majority of the members present and voting at an ordinary meeting of the association is sufficient provided that at least 14 days' notice of the time and place of the meeting was given to the members in accordance with the association's rules and the notice of meeting contained the proposed resolution for the change of name. (3) An alteration of the rules of a registered association does not take effect unless and until registered by SAET. (4) If an alteration of the rules of a registered association is of a kind that would or could affect the composition of the membership of the association, notice of an application for registration must be given, and objections may be made, in the same way, and on the same or similar grounds, as if the application were for registration of a new association. (5) SAET (constituted as an industrial relations commission) may register an alteration of rules if satisfied that— (a) the alteration would be consistent with the provisions and objects of this Act; and (b) in the case of a change of name—would not cause confusion with the name of another registered association or the name of an organisation registered under the Commonwealth (Registered Organisations) Act. 126—Model rules (1) To the extent the rules of an association conform with model rules published by regulation, no objection can be taken to the rules. (2) To the extent a proposed alteration of rules brings the rules into conformity with model rules published by regulation, no objection can be taken to the proposed alteration. 127—Orders to secure compliance with rules etc (1) SAET (constituted as the South Australian Employment Court) may, on the application of a member of an association registered under this Part or a person who has been expelled from membership of such an association, order the association or specified officers of the association— (a) to carry out an obligation imposed by the rules of the association; (b) to make good any contravention of, or failure to comply with, the rules of the association; (c) to carry out consequential or related directions SAET thinks necessary or desirable in the circumstance. (2) An association or other person who fails to comply with an order of SAET under this section is guilty of an offence. (3) SAET (constituted as the South Australian Employment Court) may, on application by a member of an association registered under this Part or a person who has applied for membership of such an association, declare a rule of the association to be invalid on the ground that the rule is inconsistent with this Act. (4) SAET may adjourn proceedings on an application under subsection (3) for a period, and on terms and conditions, SAET considers appropriate, to give the association an opportunity to alter its rules. Division 4—Financial records 128—Financial records (1) An association registered under this Part must keep proper accounting records of all its financial transactions. (2) An association registered under this Part must prepare annually the following accounts— (a) a balance sheet giving a true and fair view of the assets and liabilities of the association as at the end of the relevant accounting period; and (b) a statement of receipts and payments over the relevant accounting period. (3) The association must have the accounts prepared under subsection (2) audited by a registered company auditor. (4) The accounts and accounting records to be kept and prepared under this section must conform with the requirements of the Rules. (5) An association that fails to comply with a requirement of this section is guilty of an offence. Division 5—Amalgamation 129—Amalgamation (1) An association registered under this Part may resolve to amalgamate with another association or other associations registered under this Part. (2) A resolution to amalgamate— (a) must be passed— (i) by the executive committee, or committee of management, of the association; or (ii) by the members of the association in the same way as a resolution for alteration of the rules of the association; or (iii) in some other way provided by the rules; and (b) must approve the rules of the association to be formed by the amalgamation. (3) If a resolution to amalgamate is passed by the executive committee, or committee of management, of an association (and authority to pass the resolution is not conferred on the executive committee or committee of management by the rules), notice of the resolution must be given by post to all members of the association. (4) If, within six weeks of the posting of the notices under subsection (3), the Registrar is requested by 20 members of the association or 10% of the total membership (whichever is the lesser) to conduct a ballot— (a) the Registrar will conduct (at the expense of the association, which may be recovered as a debt from the association) a ballot of the members of the association; and (b) unless the resolution is supported by a majority of the members voting on the ballot, the resolution will lapse. (5) The rules of the association to be formed by the amalgamation may provide for persons holding office in the amalgamating associations to hold office in the new association for up to four years before an election is held for the relevant offices. (6) A registered association may use its financial and other resources in support of a proposed amalgamation if at least 14 days' notice of its intention to do so has been given to its members (but this section does not limit any other power that the association may have under its rules to support a proposed amalgamation). (7) If two or more associations resolve to amalgamate, an application for registration of the association to be formed by the amalgamation must be made and dealt with under this Division. (8) On registration of the new association— (a) the amalgamating associations are dissolved; and (b) all property, rights and liabilities of the amalgamating associations are vested in the new association.

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1 Fair Work Act 1994

South Australia Fair Work Act 1994 An Act about the relationship of employer and employee; and other matters.

Contents Chapter 1—Preliminary 1 Short title 3 Objects of Act 4 Interpretation 4AA Act binds the Crown 4A Meaning of employer for public employees 5 Outworkers 6 Application of Act to employment Chapter 2—Jurisdiction of SAET—special provisions Part 1—Conferral of jurisdiction, declarations and orders 7 Jurisdiction of SAET 8 Jurisdiction to interpret awards and enterprise agreements 9 Jurisdiction to decide monetary claims under industrial laws or instruments 10 Jurisdiction to hear and determine questions arising under contracts of employment 11 Jurisdiction to settle and resolve industrial disputes 12 Orders to remedy or restrain contraventions 13 Advisory jurisdiction Part 2—Processes associated with industrial matters and disputes Division 1—Processes generally 14 Amendment or rectification of proceedings 15 Power to re-open questions 16 General power of waiver 17 Applications to SAET Division 2—Processes when constituted as an industrial relations commission 18 Advertisement of applications 19 Provisions of award etc relevant to how SAET intervenes in dispute 20 Voluntary conferences 21 Compulsory conference 22 Reference of questions for determination 23 Experience gained in settlement of dispute Part 3—Representation 25 Representation 26 Registered agents 27 Inquiries into conduct of registered agents or other representative Part 4—Concurrent appointments—other industrial authorities 28 Concurrent appointments 29 Powers of member holding concurrent appointments Part 5—Special provisions relating to monetary claims etc 30 Interpretation 31 Limitation of action 32 Who may make a claim 33 Simultaneous proceedings not permitted 34 Judgment to include interest 35 Monetary judgment 36 Costs Chapter 3—Employment Part A1—Interpretation 65 References to SAET Part 1—General conditions of employment Division 1—Basic contractual features 66 Basis of contract of employment 67 Accrual of wages 68 Form of payment to employee Division 2—Contracts to be construed subject to relevant minimum standards 69 Remuneration 70 Sick leave/carer's leave 70A Bereavement leave 70B Family and domestic violence leave 71 Annual leave 72 Parental leave 72A Minimum standards—additional matters 72B Special provision relating to severance payments Part 2—Regulation of industrial matters by enterprise agreements 73 Objects of this Part 74 Nature of enterprise agreement 75 Who may make enterprise agreement 76 Negotiation of enterprise agreement 76A Best endeavours bargaining 77 Form and content of enterprise agreement 78 Enterprise agreement has no force or effect without approval 79 Approval of enterprise agreement 80 Extent to which aspects of negotiations and terms of the agreement are to be kept confidential 81 Effect of enterprise agreement 82 SAET's jurisdiction to act in disputes under an enterprise agreement 83 Duration of enterprise agreement 84 Power of SAET to vary or rescind an enterprise agreement 85 SAET may release party from obligation to comply with enterprise agreement 86 Limitation on SAET's powers 87 Representation 88 Confidentiality Part 3—Regulation of industrial matters by award Division 1—Awards generally 90 Power to regulate industrial matters by award 90A Equity in remuneration 91 Who is bound by award 92 Retrospectivity 93 Form of awards 94 Effect of awards on contracts 95 Effect of multiple award provisions on remuneration 96 Duration of award 97 Effect of amendment or rescission of award 98 Consolidation or correction of awards Division 1A—Special provision relating to child labour 98A Special provision relating to child labour Division 1B—Special provision relating to trial work 98B Special provision relating to trial work Division 2—Review of awards 99 Triennial review of awards Part 3A—Outworkers Division 1—Preliminary 99A Interpretation 99B Responsible contractors Division 2—Code of practice 99C Code of practice Division 3—Recovery of unpaid remuneration 99D Outworker may initiate a claim against a responsible contractor 99E Liability of apparent responsible contractor on a claim 99F Liability of actual employer to which a claim is referred 99G Recovery of amount of unpaid remuneration 99H Ability of responsible contractor to claim contribution or to make deduction 99I Offence provision 99J Non-derogation Part 4—General principles affecting determination of working conditions 100 Adoption of principles affecting determination of remuneration and working conditions 100A State Wage Case 101 State industrial authorities to apply principles Part 5—Enforcement of obligations arising from employment Division 1—Records to be kept by employers 102 Records to be kept 103 Employer to provide copy of award or enterprise agreement Division 2—Civil penalty provisions 104 Obligation to pay entitlements 104A Proceedings for contravention of civil penalty provision 104B Civil rules and procedure 104C Costs Part 6—Unfair dismissal Division 1—Preliminary 105 Interpretation 105A Application of Part Division 2—Application for relief 106 Application for relief Division 4—Determination of application 108 Question to be determined at the hearing 109 Remedies for unfair dismissal from employment Division 5—Miscellaneous 110 Costs 111 Decisions to be given expeditiously Part 7—Exemption from employment conditions 112 Slow, inexperienced or infirm workers 113 Non-application of awards 114 Exemption for charitable organisations Chapter 4—Associations Part 1—Freedom of association Division 1—Preliminary 115 Prohibited reason Division 2—Protection of freedom of association 116 Freedom of association 116A General offences against the principle of freedom of association 116B Dismissal etc for prohibited reason 117 Prohibition of discrimination in supply or purchase of goods or services 118 Conscientious objection Part 2—Locally based associations Division 1—Application for registration 119 Eligibility for registration 120 Application for registration 121 Objections Division 2—Registration and incorporation 122 Registration of associations 123 Registration confers incorporation Division 3—Rules 124 Rules 125 Alteration of rules of registered association 126 Model rules 127 Orders to secure compliance with rules etc Division 4—Financial records 128 Financial records Division 5—Amalgamation 129 Amalgamation Division 6—De-registration 130 De-registration of associations Part 3—Federally based associations Division 1—Application for registration 131 Eligibility for registration 132 Application for registration 133 Objections Division 2—Registration and de-registration 134 Registration 135 De-registration Division 3—Federations 136 Federation Part 3A—Extension of Federal administration of CFMEU 136A Interpretation 136B Application by Federal administrator of CFMEU 136C Effect of administration of ABCWF 136D Administrator not liable in civil proceedings 136E Regulations under this Part 136F Cessation of administration 136G Anti-avoidance Part 4—Provisions generally applicable to associations Division 1—Purpose of association 137 Restraint of trade 138 Limitations of actions in tort 139 Industrial services not to be provided to non-members Division 2—Powers of entry and inspection 140 Powers of officials of employee associations Division 3—Records 141 Register of members and officers of associations 142 Rules Division 4—Miscellaneous 143 Certificate of registration 144 Service 144A Demarcation agreements etc 145 Saving of obligations 146 Sequestration orders 147 Exercise of powers of SAET Chapter 6AA—Industrial Relations Consultative Council Part 1—Establishment of Consultative Council 218 Establishment of Consultative Council Part 2—Functions and powers 218A Functions and powers of Consultative Council Part 3—Composition of Consultative Council 218B Membership of Consultative Council 218C Terms and conditions of office 218D Fees, allowances and expenses Part 4—Proceedings of Consultative Council 218E Meetings 218F Proceedings 218G Conflict of interest under Public Sector (Honesty and Accountability) Act 1995 218H Validity of acts Part 5—Use of staff and facilities 218I Use of staff and facilities Part 6—Committees 218J Committees Part 7—Related matters 218K Confidentiality Chapter 6—Miscellaneous 219 Confidentiality 219A Who are inspectors 219B General functions of inspectors 219C Powers of inspectors 219D Compliance notices 220 Notice of determinations of SAET 223 Discrimination against employee for taking part in industrial proceedings etc 224 Non-compliance with awards and enterprise agreements 225 Improper pressure etc related to enterprise agreements 225A Use of offensive language against a representative 226 False entries 227 Experience of apprentice etc how calculated 228 No premium to be demanded for apprentices or juniors 229 Illegal guarantees 231 Recovery of penalty from members of association 232 General defence 233 Order for payment against convicted person 234 Proof of awards etc 235 Proceedings for offences 236 Conduct by officers etc of body corporate 236A Offences by body corporate 236B Conduct etc by officers etc of the Crown 236C Responsible agency of the Crown 237 Regulations Schedule 1—Transitional provisions 4 Definitions 5 References to former Court or Commission 6 Awards and other determinations of the former Commission 7 Industrial agreements 7A References to industrial agreements 8 Continuation of part-heard proceedings etc 9 Certificates and licences 10 The President of the former Court 11 Deputy Presidents of the Court 12 Industrial magistrates 13 Other officers of former Court and Commission 14 Inspectors 15 Members of Industrial Relations Advisory Council 16 Registered associations 17 Enterprise agreements and spouses and domestic partners 18 National industrial relations system Schedule 2—Continuity of industrial arrangements—government business enterprises 1 Preliminary 2 Operation of federal industrial instruments 3 Ability to carry over matters Schedule 2A—Continuity of industrial arrangements—local government sector 1 Preliminary 2 State industrial instruments 3 Federal industrial instruments—immediate changeover 4 Federal enterprise agreements—later changeover 5 Ability to carry over matters Schedule 3—Minimum standard for sick leave/carer's leave 1 Definitions 2 Application of standard 3 Accrual of sick leave entitlement 4 Taking sick leave 5 Sick leave to be on full pay 6 Carer's leave Schedule 3A—Minimum standard for bereavement leave 1 Bereavement leave Schedule 3B—Family and domestic violence leave 1 Definitions 2 Entitlement to family and domestic violence leave 3 Taking family and domestic violence leave 4 Family and domestic violence leave to be at full rate of pay 5 Confidentiality Schedule 4—Minimum standard for annual leave 1 Definitions 2 Application of standard 3 Accrual of annual leave entitlement 4 Taking annual leave 5 Annual leave to be on full pay Schedule 5—Minimum standard for parental leave 1 Definitions 2 Entitlement to parental leave 3 Maternity leave to start 6 weeks before birth 4 Medical certificate 5 Notice of spouse's parental leave 6 Starting and finishing dates of parental leave 7 Return to work after parental leave 8 Effect of parental leave on employment rights 9 Part-time employment in lieu of parental leave Schedule 6—Equal Remuneration Convention Schedule 7—Termination of Employment Convention Schedule 8—Rules for terminating employment 1 Employee to be given notice of termination 2 Employee to have opportunity to respond to allegations 3 Employer to comply with obligations imposed by regulation Schedule 9—Worst Forms of Child Labour Convention 1999 Schedule 10—Workers with Family Responsibilities Convention 1981 Schedule 11—Workers' Representatives Convention 1971 Legislative history