Part 7Exemption 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.