Sch 1Transitional provisions

Schedule 1—Transitional provisions 4—Definitions former Act means the Industrial Relations Act (S.A.) 1972; former Commission means the Industrial Commission of South Australia established under the former Act; former Court means the Industrial Court of South Australia established under the former Act. 5—References to former Court or Commission A reference in an Act or other instrument to the former Court or the former Commission must, where the context admits, be read as a reference to the Court or the Commission under this Act. 6—Awards and other determinations of the former Commission (1) An award in force under the former Act immediately before the commencement of this Act continues in force, subject to this Act, as if it were an award of the Commission under this Act even though the award makes provisions for conditions of employment that cannot be made by award under this Act. (a) a provision of an award that continues in force under subsection (1) providing for preference to members of an association lapses on the commencement of this Act; and (b) a right of entry and inspection conferred by an award that continues in force under subsection (1) must be read down so as to be consistent with this Act. (3) All other determinations of the former Commission in force immediately before the commencement of this Act continue in force subject to this Act as if they were determinations of the Commission under this Act. (4) If a recommendation was made before the commencement of this Act by the Commission or a member of the Commission for the prevention or settlement of an industrial dispute, the recommendation continues in effect as if it had been made by the Commission or a member of the Commission under this Act. 7—Industrial agreements (1) An industrial agreement in force under the former Act immediately before the commencement of this Act continues in force under this Act, unless earlier superseded by an enterprise agreement, until 31 December 1996. (a) a provision of an industrial agreement that continues in force under subsection (1) providing for preference to members of an association lapses on the commencement of this Act; and (b) a right of entry and inspection conferred by an industrial agreement that continues in force under subsection (1) must be read down so as to be consistent with this Act. (3) The Commission— (a) must take reasonable steps to ensure that the parties to industrial agreements are aware that the agreements will lapse on 31 December 1996; and (b) must, as far as practicable and appropriate, encourage the renegotiation of the agreements as enterprise agreements. (4) The provisions of the former Act apply, with adaptations and modifications prescribed by regulation, to an industrial agreement that continues in force under this section. 7A—References to industrial agreements (1) A reference to an industrial agreement in an Act or statutory instrument extends to an enterprise agreement under this Act. (2) However, this section does not apply to references to an industrial agreement in the Long Service Leave Act 1987 or a statutory instrument under that Act. 8—Continuation of part-heard proceedings etc (1) The jurisdiction of the Court and the Commission under this Act extends to causes of action that arose before the commencement of this Act. (2) Any proceedings that had been commenced before the former Court or the former Commission may be continued and completed by the Court or the Commission under this Act. (3) The Court or Commission will apply the substantive law in force when the cause of action arose, or if proceedings relate to the making or variation of an award, when the application was made. (4) However, if an application for an award or variation of an award is made after 14 May 1994, the application is to be determined in accordance with this Act. 9—Certificates and licences (1) A certificate under section 144 of the former Act (a "section 144 certificate") continues in force (unless cancelled by the Registrar at the request of the person for whom the certificate was issued) as a certificate of conscientious objection under this Act and a reference in an award or agreement to a section 144 certificate will be construed as a reference to a certificate of conscientious objection under this Act. (2) A certificate under section 167 of the former Act continues in force as if it were a certificate under section 230 of this Act. (3) A licence in force under section 88 of the former Act immediately before the commencement of this Act continues in force, subject to this Act, as if it were a licence under section 112 of this Act. 10—The President of the former Court (1) The person holding office as President of the former Court immediately before the commencement of this Act— (a) becomes on the commencement of this Act the Senior Judge of the Court (and is entitled while continuing in the office to the title of President of the Court); and (b) continues, while holding that office, to have the same rank, status and precedence as a Judge of the Supreme Court and to be entitled to be styled "The Honourable Justice …". (2) The person to whom subsection (1) applies is, while continuing to hold office as the Senior Judge of the Court under this section, a member of the principal judiciary of the Court. (3) The provisions of the former Act about salary, tenure and conditions of office relating to the office of President of the former Court apply (with the necessary modifications) to the office of Senior Judge of the Court for as long as the person to whom subsection (1) applies continues to hold that office. (4) Other provisions of this Act that are inconsistent with this section must be read subject to this section. 11—Deputy Presidents of the Court (1) Each person who held office as a Deputy President of the former Court immediately before the commencement of this Act becomes, on that commencement, a judge of the Court. (2) A person to whom subsection (1) applies is, while continuing to hold office as a Judge of the Court under this section, a member of the principal judiciary of the Court. (3) The provisions of the former Act about salary, tenure and conditions of office relating to the office of Deputy President of the former Court apply (with necessary modifications) to the office of a judge to whom subsection (1) applies for as long as the judge continues to hold office in accordance with those provisions as a judge of the Court. (4) Other provisions of this Act that are inconsistent with this section must be read subject to this section. 12—Industrial magistrates (1) Each person who held office under the former Act as an industrial magistrate immediately before the commencement of this Act becomes, on the commencement of this Act, a magistrate under the Magistrates Act 1983. (2) A magistrate to whom subsection (1) applies will, for so long as he or she continues to hold office under the Magistrates Act 1983, continues to be an industrial magistrate and a member of the principal judiciary of the Court unless he or she resigns the office of industrial magistrate. (3) A person may resign the office of industrial magistrate under this section without resigning as a magistrate under the Magistrates Act 1983. (4) The accrued and accruing rights in respect of employment of a magistrate to whom this section applies are unaffected by this section. (5) Other provisions of this Act that are inconsistent with this section must be read subject to this section. 13—Other officers of former Court and Commission (1) A person who held office as a commissioner under the former Act immediately before the commencement of this Act becomes, on the commencement of this Act, unless the Governor otherwise determines, a commissioner under this Act as if appointed on the commencement of this Act as a commissioner under this Act. (2) The commissioner will be taken to have been appointed for a term of six years (which may be renewed once for a further term of six years) but if the commissioner is over 60 at the time of the appointment or renewal, the term will end when the commissioner reaches 65 years of age. (3) The Registrar and other staff of the former Court and the former Commission (other than those specifically mentioned above) are, on the commencement of this Act, transferred to corresponding positions on the staff of the Court or the Commission (or both) under this Act. (4) The salary and accrued and accruing rights to annual leave, sick leave, family leave and long service leave of persons who are transferred by this section to offices and positions under this Act are not to be prejudiced by the transfer. (5) However, a salary difference that exists between a transferee and another person in the same office or position, and in favour of the transferee, is not preserved beyond the point when the salary of the other person reaches or exceeds the level of the transferee's salary at the time of transfer. 14—Inspectors A person who was an inspector under the former Act continues, subject to this Act, as an inspector under this Act. 15—Members of Industrial Relations Advisory Council A person who held office as a member of the Industrial Relations Advisory Council immediately before the commencement of this Act continues in office, subject to this Act, as a member of the Committee. 16—Registered associations (1) An association that was, immediately before the commencement of this Act, a registered association under the former Act continues as a registered association under this Act. (2) No objection of a kind that was prevented by section 133(1) of the former Act immediately before the re-enactment of Part 9 of that Act pursuant to section 41 of the Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment Act 1991 (and then prevented by section 55 of that Amendment Act) may be taken in relation to an association registered under this Act immediately before the commencement of the Industrial and Employee Relations (Registered Associations) Amendment Act 1997.1 1 Section 133(1) of the former Act provided as follows: 133 (1) The legal existence or registration of an association, the membership of any member or any person claiming to be a member of an association, the validity of the appointment or election of any officer of an association or of any action or decision of such an officer, or the validity of any resolution passed or decision made at any meeting of an association or of any committee of the association, cannot be challenged, impugned or in any way affected, nor can the compliance of any rule or rules of an association with the prescribed conditions, or the observance or validity of any such rule or rules or the operation of any award or order made under this Act, be challenged, impugned or in any way affected by reason only that— (a) the association is also registered as an organization pursuant to the Commonwealth Act, or is a branch or forms part of an organization so registered; (b) members of the association are also members of an organization registered under the Commonwealth Act, and no register of members separate and distinct from the register kept by the organization registered under the Commonwealth Act is kept by the association, or no application for membership or membership fee separate from the application or fee made and paid to the organization registered under that Commonwealth Act has been made or paid to the association by any member; (c) the association keeps and maintains no or insufficient books, accounts, records or rules which are separate and distinct from any books, accounts, records or rules kept and maintained by an organization registered under the Commonwealth Act, of which some or all of its members are members; (d) officers or the association have been elected or appointed by or are also officers of an organisation registered under the Commonwealth Act; or (e) any matter consequential upon or arising out of the matters referred to in paragraphs (a) to (d). 17—Enterprise agreements and spouses and domestic partners From the commencement of this clause, an enterprise agreement that provides that sick leave is available to an employee if the leave becomes necessary because of the sickness of a spouse, will be taken to provide that sick leave is available to an employee if the leave becomes necessary because of the sickness of a spouse or domestic partner (whether the agreement was entered into before or after the commencement of this clause). 18—National industrial relations system (1) In this clause— designated day means the day on which a Commonwealth law in the terms, or substantially in the terms, set out in the tabled text under the Fair Work (Commonwealth Powers) Act 2009 comes into operation. (2) This Act will operate in relation to— (a) any matter arising under this Act before the designated day (including a matter that is not in the nature of a right or that is procedural in nature); and (b) any matter arising, directly or indirectly, out of such a matter, insofar as the matter is not dealt with under the Fair Work Act 2009 of the Commonwealth on or after the designated day. (3) Nothing in this clause is intended to limit or affect the operation of this Act— (a) in relation to industrial or other matters that are not affected by a law of the Commonwealth relating to matters referred to the Parliament of the Commonwealth under the Fair Work (Commonwealth Powers) Act 2009; or (b) in any other respect (except to the extent that this Act cannot apply by virtue of a law of the Commonwealth).