Part 1Preliminary

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.