Fair Work Act 1994

The Act primarily affects employers and employees within South Australia's state industrial system, defined broadly in s 4. "Employee" includes those under common law contracts of employment, plus drivers of unregistered vehicles for public passenger services, cleaners, and outworkers (s 4(1)), but excludes national system employees (s 6(aa)) unless on excluded subject matters. "Employer" for non-public employees is the person engaging them for remuneration in an industry; for public employees, it is the regulated body declared by regulation (s 4A), binding the Crown (s 4AA). Outworkers (s 5, those processing or distributing work from private residences) gain extended rights against "responsible contractors" (s 99B), affecting supply chains in clothing or clerical industries.

Registered associations of employers or employees (Chapter 4) are heavily impacted: locally based ones must meet eligibility (100+ members, s 119), rules requirements (s 124, no oppressive conditions), and democratic control (s 3(1)(l)), with registration conferring incorporation (s 123). Federally based ones (organisations under the Fair Work (Registered Organisations) Act 2009 (Cth)) register under Part 3 if eligible (s 131), with de-registration for oppression or loss of autonomy (s 135). The Act binds peak entities like SA Unions and Business SA in wage cases and minimum standards reviews (ss 69(3), 100(1)).

SAET, inspectors (s 219A), and the Industrial Relations Consultative Council (Chapter 6AA, with Minister, 6 employer and 6 employee representatives advising on policy and legislation – s 218A) are directly affected in their functions. The Crown is bound (s 4AA), liable for offences and penalties, with responsible agencies designated (s 236C). Charitable organisations may be exempted from awards by Ministerial Gazette notice if in the public interest (s 114), and assisted persons with impairments in recognised organisations are excluded from most awards (s 113).

Slow, inexperienced, or infirm workers can obtain licences for below-minimum wages (s 112), limited to 1/5 of the employer's workforce in the class. Juniors, apprentices (defined via South Australian Skills Act 2008), and those on trial work fall under specific award rules (ss 98A–98B). Family members in the broad sense (s 4(1), including household dependents) trigger carer's, bereavement, and domestic violence leave. Victims of prohibited reason discrimination (s 115, e.g. union membership, filing complaints) gain protections and potential compensation on conviction (s 116B(2)).

Business successors, transmittees, or assignees inherit enterprise agreements (s 81(4)) or awards (s 91(2)), subject to SAET variation in exceptional circumstances (s 81(5)–(10)). Consultants or representatives in SAET proceedings (s 25–27) face conduct inquiries and sanctions, with registered agents requiring qualifications and observing a code (s 26).

Employers' key duties include paying full remuneration without deduction except authorised amounts (s 68(1)–(3)), keeping 7-year records of times, wages, leave, and births (s 102(1)–(3)), issuing payslips with hours, rates, and super details (s 102(8)), providing instrument copies on request (s 103(1)–(2)), exhibiting awards/agreements (s 103(4)), and complying with minimum standards, awards, agreements, and civil penalty provisions (s 104). They must not discriminate for prohibited reasons (s 116B, maximum $20,000), apply improper pressure on agreements (s 225), demand premiums for apprentices (s 228), or hinder outworker claims (s 99I). Records must be produced to employees, former employees, or inspectors (s 102(4)), and transmitted on business sale (s 102(5)). For unfair dismissal, they must follow Schedule 8 (notice, opportunity to respond, regulatory obligations) and s 18/20 of the Return to Work Act 2014 (s 108(2)(e)).

Employees have rights to minimum standards (ss 69–72B), prevailing over contracts if more beneficial (s 94 for awards), re-employment as preferred unfair dismissal remedy (s 109(1a)), monetary claims (s 9), contract-based actions including specific performance (s 10, subject to s 10(4) limits), and freedom from prohibited reason adverse action (s 116B). They may initiate outworker claims against apparent responsible contractors (s 99D, within 6 months of work completion), with statutory declaration verification. Representation rights in negotiations and SAET (s 25, including registered agents or association officers) are explicit, with best endeavours bargaining duties on parties (s 76A). Associations enjoy registration rights (ss 119–122, 131–134), rule alteration (s 125), amalgamation (s 129), entry powers (s 140, with 24-hour notice and no interruption/harassment), and representation of members (s 139, but not non-members except on request). Conscientious objectors gain certificates (s 118).

SAET's rights include interpreting awards/agreements with regard to intent (s 8), making orders to remedy contraventions (s 12), advisory reports (s 13), varying agreements for successors (s 81(5)), and imposing civil penalties (s 104A, up to specified maxima, considering course of conduct under s 104A(4)). Inspectors may enter workplaces, inspect records, question persons, issue compliance notices (ss 219C–219D), with offences for obstruction ($1,250, s 219C(9)). The Consultative Council advises on policy and legislation (s 218A), with confidentiality obligations ($10,000 penalty, s 218K).

Duties on associations include financial records and audits (s 128, $750 penalty), furnishing member lists (s 141, $750), supplying rules ($750, s 142), and not providing services to non-members (s 139, $2,500). Officers face sequestration for unpaid judgments (s 146) and conduct inquiries (s 27). All parties must adhere to procedural rules, with SAET waiver powers (s 16) but strike-out for non-compliance.

Enforcement is dual: criminal offences with fines and civil penalties. Key offences include failing to pay entitlements (s 68(6), maximum $3,250, expiation $325), record-keeping breaches (s 102(1)–(4), $2,500 or $1,250, expiations $160/$105), non-provision of instruments (s 103, $750, expiation $80), award/agreement non-compliance (s 224, $25,000), prohibited reason actions (ss 116A–116B, 117, $20,000), harassment on agreements (s 225, $20,000), offensive language (s 225A, $5,000), false entries (s 226, $2,500), hindering inspectors (s 219C(9), $1,250), and CFMEU anti-avoidance (s 136G, $100,000). Bodies corporate face officer liability if knowingly involved (s 236A), with Crown penalties at corporate rates (s 236B(1)). General defences exist for employers if another was responsible and due diligence was used (s 232(1)), shifting liability (s 232(2)).

Civil penalties under s 104 target deliberate systematic underpayments (including wages, loadings, super, s 104(3)), maximum $25,000, with SAET orders payable to State, organisations, or persons (s 104A(7)). Course of conduct counts as one contravention (s 104A(4)), but not post-penalty repeats. Applications by affected employees, associations, or inspectors (s 104A(6)), within 6 years (s 104A(9)). Costs limited to vexatious or unreasonable conduct (s 104C). Compliance notices (s 219D) require remedy and evidence within time, with $3,250 penalty (expiation $325) for non-compliance, reviewable by SAET (s 219D(3)–(4)).

Monetary judgments include interest (s 34, mandatory unless good reason, accounting for pre-judgment period but no interest on interest), instalments (s 35), and super payments (s 35(2)). Costs in monetary claims are restricted to super valuation expenses or appeals if vexatious (s 36). Unfair dismissal costs if unreasonable failure to settle (s 110). Association rule non-compliance attracts $1,250 (s 127(2)). Sequestration enforces judgments (s 146).

Inspectors investigate, audit, promote compliance (s 219B), with identity cards required (s 219A(3)). SAET can order remedial steps or restraint (s 12), including pre-emptive (s 12(2)). Prosecutions within 2 years (s 235(2)), in SAET's criminal jurisdiction (s 235(1)).

The Act explicitly interacts with federal and state laws. Section 6 excludes national system employers (per Fair Work Act 2009 (Cth)) except excluded subject matters under the Fair Work (Commonwealth Powers) Act 2009 (Cth), with transitional continuity in Schedules 1–2A for government businesses and local government (federal instruments become state awards/agreements, modifiable by SAET for fairness, expiring after 2 years). Section 3(1)(p) promotes cooperative federalism via dual appointments (Chapter 2 Part 4, ss 28–29 allowing simultaneous power exercise) and integration.

It cross-references the Public Sector Act 2009 for public employees (ss 4, 4A, note to "workplace law" in s 4(1)), Return to Work Act 2014 (ss 10(8), 108(2)(e) on rehabilitation obligations in dismissals), South Australian Skills Act 2008 (apprentice definition, s 4(1)), Family Relationships Act 1975 (domestic partner, s 4(1)), Advance Care Directives Act 2013 (substitute decision-makers in negotiations, s 76(5a)), and Passenger Transport Act 1994 (taxi definition, s 4(1)). Workplace laws (e.g. long service leave, OHS) are preserved (note to s 4(1)), but monetary claims under them must use their specific jurisdiction (s 9(2) note, e.g. Long Service Leave Act 1987 s 13).

International conventions are incorporated: Equal Remuneration (Schedule 6, s 3(2)(a) via s 69(2)), Termination of Employment (Schedule 7, s 108(2)(a), Schedule 8), Worst Forms of Child Labour (Schedule 9, s 3(2)(a)), Workers with Family Responsibilities (Schedule 10, s 3(2)(b)), and Workers' Representatives (Schedule 11, s 3(2)(c)). SAET must have regard where relevant.

With associations, the Fair Work (Registered Organisations) Act 2009 (Cth) defines eligible federal bodies (ss 4(1), 131), with demarcation preferring local associations (s 144A(2)). The Crown Proceedings Act 1992 is disapplied except for s 10 claims (s 4AA(4)). Charitable exemptions from awards (s 114) and assisted persons exclusions (s 113) interact with disability and non-profit laws. Records and privacy overlap with confidentiality offences (ss 219, 218K, 80(5), $2,500–$10,000).

In practice, s 100 adopts Fair Work Commission principles for remuneration (with consistency to Act objects), and s 100A aligns state wage cases to federal Annual Wage Reviews. Part 3A extends federal CFMEU administration to state ABCWF (s 136B–136F), with regulations modifying powers (s 136E) and anti-avoidance (s 136G). Transitional Schedule 1 preserves pre-1994 awards, agreements, and proceedings (cll 6–8), with references updated (cl 5).

The legislative history reveals iterative expansions aligning with evolving objects in s 3. The 2005 Industrial Law Reform (Fair Work) Act (No 3/2005) renamed and restructured the Act, inserting minimum standards (ss 69–72B, Schedules 3–5), outworker protections (Part 3A), equity provisions (s 90A), best endeavours bargaining (s 76A), and civil penalties (s 104, then in Division 2). This was to modernise, incorporate international conventions explicitly (s 3(2)), and strengthen the safety net post-federal changes.

The 2009 Statutes Amendment (National Industrial Relations System) Act (No 58/2009) added federal alignment (s 3(1)(p), s 6, Schedules 1–2A), definitions (Commonwealth Act, Fair Work Australia—now Commission per 2024 amendments), and transitional continuity for local government and GBEs, responding to the federal takeover of most private sector relations to avoid dual systems.

The 2015 Statutes Amendment (Industrial Relations Consultative Council) Act (No 36/2015) replaced the Advisory Council with the Consultative Council (Chapter 6AA, ss 218–218K), to enhance tripartite policy advice on industrial matters, reflecting s 3(1) objects for consultation.

The 2023 Fair Work (Family and Domestic Violence Leave) Amendment Act (No 10/2023) inserted s 70B and Schedule 3B (15 days' paid leave for related purposes, confidentiality under cl 5 with $10,000 penalties), to facilitate work-family balance (s 3(1)(o)) and address gender equity (s 3(1)(ma)), with evidence rules protecting details (cl 3(4)).

The 2024 Statutes Amendment (Industrial Relations Portfolio) Act (No 2/2024) and Fair Work (Registered Associations) Amendment Act (No 49/2024) updated definitions (Fair Work Commission, s 4(1)), public employee employers (new s 4A), CFMEU administration (Part 3A, ss 136A–136G with Gazette notices, non-liability for administrators under s 136D, anti-avoidance), and demarcation (s 144A preferring local associations). These facilitate federal-state cooperation (s 3(1)(p)) and union governance post-federal interventions. The Fair Work (Worker Entitlements) Amendment Act 2025 (No 43/2025, commencing 1.1.2026) adds civil penalty definitions (s 4(1)), tightens underpayment rules (new ss 4AA, 104 amendments requiring deliberateness and systematic pattern, with Crown authorisation as proof), and updates enforcement (ss 104A–104C, 236B–236C).

Changes stem from s 3 objects updates (e.g. adding (ca) employment promotion, (fa) safety net, (fb) security, (ma) gender equity), federal harmonisation, and responses to contemporary issues like domestic violence and union administration, ensuring the Act remains "relevant [and] flexible" (s 3(1)(d)–(e)).

The Act anticipates controversies through built-in safeguards rather than detailing specific litigation. Freedom of association provisions (Chapter 4 Part 1) have been contentious, with "prohibited reason" defined broadly in s 115 (e.g. union activity, secret ballots, or seeking better conditions), leading to offences under ss 116A–116B ($20,000) and discrimination in goods/services (s 117). Courts (via SAET as South Australian Employment Court) must assess if reasons "include" prohibited ones, with reverse onus implied in some contexts but not explicit. Section 118's conscientious objection certificates, issued on religious belief evidence, can spark disputes over "genuine" objections, cancellable on request.

Unfair dismissal (Part 6) generates challenges on whether dismissals are "harsh, unjust or unreasonable" (s 108(1)), requiring regard to the Termination of Employment Convention (Schedule 7), Schedule 8 rules (notice, response opportunity), business size/human resources impact (s 108(2)(c)–(d)), and rehabilitation obligations (s 108(2)(e)). Re-employment is preferred (s 109(1a)), but cogent reasons allow compensation (capped at 6 months or $33,100 indexed, s 109(3)), with exceptions for small businesses (<50 employees, s 109(1b)). Section 105A exclusions (high-income non-award employees over $100,322 indexed, apprentices, probationers if reasonable and <12 months, casuals without systematic expectation) often feature in jurisdictional arguments, as do fixed-term contracts without continuing expectation (s 105A(4)).

Association de-registration (ss 130, 135) for oppression, non-compliance with determinations, or (for federal bodies) loss of South Australian autonomy has potential for controversy, with SAET able to alter rules to exclude classes instead (s 130(4)). Demarcation disputes (s 144A) mandate preference for locally based over federal counterparts, potentially limiting federal organisations.

Monetary claims jurisdiction (s 9–10) excludes workplace laws with their own court jurisdiction (s 9(2) note), leading to forum disputes. Specific performance limits against natural persons (s 10(4)(a), except restraints under s 10(5)) consider reorganisation hardship or employment prevention, with justice interests factoring delay and lost confidence (s 10(4)(b)). Tort immunity during disputes (s 138(1)) is excepted for injury, property damage, conversion, defamation, or post-failed conciliation if unreasonable conduct prolonged the dispute (s 138(3)–(4)), with expedited public interest hearings (s 138(5)).

Inspector powers (s 219C) and compliance notices (s 219D) can be reviewed, with offences for offensive language or force (s 219B(3), $5,000). Confidentiality breaches (ss 80(5), 219, 218K) carry fines up to $10,000. The Act's Crown binding (s 4AA, with responsible agency per s 236C) and conduct attribution (ss 236–236B) raise sovereign immunity questions, though explicitly overridden.

Section 232 general defence (due diligence, no knowledge) and s 233 orders for payment on conviction mitigate some enforcement controversies. Overall, the text frames challenges as resolved via SAET's expeditious, low-formality processes (ss 111, 19, 8(b)), with appeals limited (e.g. from Registrar on agents, s 27(4)).

Most practitioners miss that the Act's minimum standards (Part 1 Division 2) are not mere defaults but mandatory construction rules: contracts "are to be construed as if" they provided for them (ss 69(1), 70(1), 71(1), 72(1)), prevailing unless more favourable or per award/agreement. This catches poorly drafted contracts, especially with juniors or casuals (s 69(3)(iii)–(iv)). The indexed amounts ($100,322 for unfair dismissal exclusion under s 105A(1)(a), $33,100 compensation cap under s 109(3)) adjust annually on 1 January per s 4(4) using state average earnings—failure to index in advice risks under-claiming.

Outworker Part 3A is a sleeper: liability cascades up the chain (s 99B "initiates an order or distributes"), with the outworker claiming against the "apparent" responsible contractor (s 99D), who can refer to the actual employer within 14 days (s 99E) but remains liable unless the actual accepts (s 99F). Contribution or set-off against related employers is allowed (s 99H), but false referrals attract $5,000 offences (s 99I(c)). The 6-month claim limit (s 99D(3)) and statutory declaration requirement (s 99D(5)) are strict; non-derogation (s 99J) means it supplements, not replaces, award or contract rights—useful for fragmented supply chains but risky for contractors ignoring "apparent" status.

In enterprise agreements, the "best interests" test (s 79(1)(e)(i)) considers all employees, with SAET identifying overlooked interests (s 79(4)). Provisional agreements for new operations (s 75(5)) bypass some approval steps but require renegotiation within SAET-fixed time (s 79(7)). Confidentiality undertakings (s 80(4)) can suppress entire agreements for "exceptional" circumstances, but statistical data cannot be prohibited (s 88(2)), and breaches post-approval attract $2,500 (s 80(5)). Associations cannot represent non-members in SAET without request (s 139, $2,500), a gotcha for peak bodies.

Unfair dismissal's 21-day limit (s 106(1)) is strict, but referrals from other authorities restart it (s 106(3a)). "Harsh, unjust or unreasonable" (s 108) incorporates Schedule 8 and the Convention (Schedule 7), but redundancy payments per instrument do not alone make it unfair (s 108(3)). Re-employment preference (s 109(1a)) yields only for "cogent reasons," but small businesses are exempt from that presumption (s 109(1b))—often overlooked in <50 employee cases. Costs under s 110 require clear unreasonableness in failing to settle, with 14-day post-conference discontinuance triggering employer applications.

Association rules must not be oppressive (s 124(d)), with SAET able to declare invalid (s 127(3)) or order compliance (s 127(1)), but only after giving alteration opportunity (s 127(4)). Financial records must be audited (s 128(3)), with annual officer lists (s 141(3)) publicly inspectable (s 141(3a))—non-compliance $750. Registered agents face strict eligibility (no struck-off lawyers, s 26(3)), code of conduct (s 26(5)), and Registrar inquiries (s 27), with suspension/cancellation appealable (s 27(4)).

Crown provisions (ss 4AA, 236B–236C) mean public sector employers face corporate penalties, with responsible agency designation changeable in proceedings (s 236C(3)). The 6-year monetary limit (s 31) excludes super, and simultaneous proceedings bar (s 33) prevents forum shopping. Finally, s 100A state wage cases must follow federal reviews unless objection triggers de novo hearing (s 100A(5)), with interested parties narrowly defined—missed objections can lead to automatic adoption without evidence.

Compliance begins with classification: determine if the employer is national system (excluded under s 6(aa)) or state (including public per s 4A regulation). For state employers, audit against minimum standards (ss 69–72B, Schedules 3–5, 3B): ensure contracts incorporate (or exceed) adult minimum wage, casual hourly, junior rates (s 69(3)), 10 days sick/carer's (Schedule 3 cl 3), 2 days bereavement (Schedule 3A), 15 days family violence (Schedule 3B cl 2, full pay per cl 4, confidentiality cl 5 with $10,000 offence), 4 weeks annual (Schedule 4), and up to 52 weeks parental (Schedule 5, starting 6 weeks pre-birth for maternity). Use s 72A for extra paid parental if peak entities apply. For redundancy, apply the s 72B standard on employee/association application within 21 days.

Maintain records per s 102 (names, times, wages, leave, under-21 births, prescribed matters; electronic ok but verified printouts; 7 years), provide payslips (s 102(8)), instrument copies/exhibits (s 103), and transmit on business sale (s 102(5)). Pay in cash/cheque/electronic without unauthorised deductions (s 68), monthly (s 104(2)).

For enterprise agreements, give 14 days' notice, inform of representation (including agents/associations), allow award access (s 76), bargain in good faith (s 76A: meet, explain, disclose, no capricious shifts), and submit within 21 days (s 77(2)). Ensure s 79 compliance (information, no coercion, majority agreement, consultation, best interests, no discrimination, safety net). Lodge confidentially if exceptional (s 80(4)). Monitor for disputes, following internal procedures first (s 82(2)).

Comply with awards (s 90, binding per s 91), reviewing triennially (s 99) for obsolescence. For outworkers, adopt code (s 99C), track responsible contractor status (s 99B), and prepare for claims (respond/refer within 14 days, s 99E). Avoid prohibited reasons in decisions (s 115 list: union status, complaints, industrial action refusal), with positive obligations not to dismiss, injure, or refuse employment (s 116B).

For dismissals, give Schedule 8 notice, opportunity to respond (s 108(2)(b)), consider size/HR (s 108(2)(c)–(d)), and rehabilitation (s 108(2)(e)). For unfair claims, prepare for s 108 hearing; if adverse, prioritise re-employment (s 109(1a)), with continuity, backpay, and leave accrual (s 109(2)).

Register associations per eligibility (ss 119, 131), rules (ss 124–126), financials (s 128), and annual returns (s 141). Provide entry facilities but enforce no harassment (s 140(3)). Use Consultative Council for policy input (s 218A). As Crown or body corporate, ensure authorisation does not imply deliberateness for penalties (s 104(5), ss 236–236C). Train on confidentiality (ss 219, 80, 218K). Engage SAET early for interpretations (s 8), approvals, or disputes (Chapter 2). Review annually against indexed amounts (s 4(4)) and federal alignments (s 100A). For compliance programs, document due diligence (s 232 defence), audit records (s 102(4)), and seek s 16 waivers only for genuine procedural issues. In multi-jurisdictional operations, map against s 6 exclusions and Schedule 2A local government transitions. This systematic approach, grounded in the text's procedures, minimises risk of orders (s 12), penalties, or de-registration (ss 130, 135).