Part 5Special 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if it appears that proceedings based on the same claim have begun in another court and the proceedings have not been withdrawn or struck out. 34—Judgment to include interest (1) Unless there is good reason for not doing so, the South Australian Employment Court must, on the application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.