Industrial Referral Agreements Act 1986

The Act rests on a small set of structural concepts. First, the referral agreement. The Act makes written agreement the jurisdictional predicate: the matter must be the subject of a written referral agreement between two or more eligible parties before SAET’s referral functions are engaged (s 3(1)). The referral agreement is the contractual instrument that defines scope, process and limits. It can be particularised (single dispute) or class-based (s 3(2)), and it may be amended by mutual agreement (s 3(17)). Once a referral is made, unilateral withdrawal is not permitted without written agreement by the other party or parties (s 3(18)). These provisions convert a private contractual choice into the source of tribunal jurisdiction.

Second, the nature of SAET’s role under a referral agreement. The parties can specify whether SAET acts as conciliator, mediator or arbitrator; whether it should make recommendations; or whether it should make determinations or orders the parties agree to accept (s 3(4)). The parties may therefore choose an ADR model (non-binding recommendations) or an adjudicative model (binding determinations agreed in advance to be accepted). However, the Act limits SAET to powers it might exercise under s 7 of the Fair Work Act 1994, and prevents SAET from granting relief outside the referral agreement (s 3(6)). That means SAET’s substantive reach under a referral is contractually bounded.

Third, binding effect and enforceability. A determination, order or decision of SAET on a referral is binding on the parties and may be enforced under the Fair Work Act 1994 as if it were a regular SAET determination (s 3(10)). The Act therefore uses the enforcement architecture of the Fair Work Act to give effect to private dispute resolution outcomes. The Act also gives SAET power to interpret the referral agreement (s 3(12)), allowing it to determine its own jurisdictional bounds under the agreement.

Fourth, procedural architecture and regulatory overlay. The Act contemplates that regulations may modify application of Fair Work Act and South Australian Employment Tribunal Act 2014 provisions to referrals (s 3(7)), and that SAET rules may be made for practice and procedure when performing functions under referrals (s 3(9)). Parties are required to seek assistance in accordance with those rules (s 3(5)). This overlays a mixture of contractually-specified process and tribunal rules/regulations that can shape how referrals are run.

Fifth, interaction with review and appeal. Where the referral agreement provides that the determination will be final and conclusive, that determination is not subject to review or appeal under Part 5 of the South Australian Employment Tribunal Act 2014 (s 3(14)(a)). Conversely, if an application for review or appeal under that Part is made, that application will be treated as part of the referral (s 3(14)(b), s 3(15)). Those clauses make the finality and review consequences of referral determinations partly a matter of the referral agreement’s terms and of procedural choices taken by parties.

Sixth, continuity and preservation of other powers. The Act expressly states that the functions and powers conferred by the Act are in addition to, and do not derogate from, other SAET powers under the Fair Work Act 1994 or the South Australian Employment Tribunal Act 2014 (s 3(16)). The Act thus supplements rather than displaces existing tribunal jurisdiction.

Finally, definitional alignment with the Fair Work Act. A word or expression used in the Act that is defined under s 4 of the Fair Work Act 1994 has the same meaning in this Act as in that Act (s 2). This anchors interpretation of key terms to the federal statutory definitions used in the Fair Work Act.

These concepts show the statute’s mechanism: private parties convert a contractual agreement into tribunal jurisdiction, define the remit and procedural model, and rely on SAET and existing enforcement mechanisms to implement outcomes.

The Act explicitly identifies who may be a party to a referral agreement (s 3(3)). That list comprises employers or groups of employers, employees or groups of employees, registered associations, and the United Trades and Labor Council. Therefore, the immediate affected population is limited to workplace actors and representative organisations in the industrial relations sphere; general third parties are not identified as parties who can initiate a referral under this Act.

Practitioners drafting referral agreements , corporate counsel, workplace relations lawyers, union officials, HR and employment relations managers , are directly affected because the Act makes the existence and content of written referral agreements determinative of SAET’s jurisdiction under the Act (s 3(1)-(2), s 3(4)). Parties entering referral agreements decide whether SAET acts in a consensual ADR role or as an adjudicator making binding orders (s 3(4)). Because the Tribunal can determine the scope or meaning of the referral agreement (s 3(12)), parties and their advisers need to anticipate legal interpretation by SAET as part of drafting and negotiating referral terms.

Employees and employers face binding obligations if they agree to accept SAET determinations (s 3(10)). Once a referral has been made, a party cannot withdraw without the agreement in writing of other parties (s 3(18)), so individuals and organisations who consent to referral may be constrained by that removal of unilateral exit rights. The ability of referral determinations to be enforced under the Fair Work Act 1994 means enforcement mechanisms available under that federal statute can be invoked against parties to a referral (s 3(10)). Accordingly, parties may face the practical costs of enforcement proceedings and associated remedies under federal enforcement architecture, for example in execution or compliance.

Regulators and tribunal administrators are affected by the Act’s delegation of procedural and regulatory authority. The Governor may make regulations contemplated by the Act (s 4), and the Act authorises regulations to make provision for the application of Fair Work Act and SAET Act provisions with prescribed modifications (s 3(7)). SAET is authorised to make rules in connection with practice and procedure for referrals (s 3(9)). That creates an administrative burden on the Tribunal to design rules and on the executive to consider any regulatory instruments.

Finally, the Act interacts with other institutional actors. The South Australian Employment Tribunal Act 2014 is engaged for appeals and reviews (s 3(14)-(15)), and the Fair Work Act 1994 is engaged for definitions (s 2), jurisdictional equivalence of SAET powers (s 3(6)), and enforcement (s 3(10)). Therefore federal and state institutional actors, and clients who litigate or enforce outcomes, will be affected.

Absent from the Act are criminal sanctions, special procedural classes of parties beyond the listed categories, or express third-party notice requirements. The absence of such provisions means the Act primarily affects consenting workplace actors and the tribunals that implement referral agreements.

The Act establishes a small set of duties and rights that attach to parties, SAET and to the executive via regulation-making power.

Duties on parties:

• Enter into a written referral agreement before seeking SAET’s assistance (s 3(1)). The requirement of a written agreement is jurisdictional.
• Seek SAET’s assistance in accordance with SAET rules (s 3(5)). Parties are bound to follow procedural rules that SAET may have in place for referrals.
• Accept determinations where the referral agreement specifies that SAET’s determinations/orders are to be accepted (s 3(4)(c)), because determinations on referral are binding on the parties (s 3(10)(a)). The parties may contractually agree to accept SAET determinations as part of the referral agreement.
• Refrain from unilateral withdrawal after referral without written consent of the other parties (s 3(18)). This constrains a party’s exit rights once the Tribunal has been engaged under the referral.

Rights of parties:

• Right to agree the procedural model SAET will use , conciliator, mediator or arbitrator; to make recommendations; or to make determinations or orders the parties accept (s 3(4)). Parties can tailor the Tribunal’s role.
• Right to have a determination by SAET that is binding and enforceable under the Fair Work Act 1994 (s 3(10)). Binding determinations create a right to enforcement remedies.
• Right to amend the referral agreement by mutual agreement (s 3(17)). Parties retain the contractual right to vary the agreement.

Duties and powers of SAET:

• Duty/power to perform the functions and exercise powers it might exercise under s 7 of the Fair Work Act 1994 in relation to the referred matter, but only subject to any limitation or exclusion specified in the referral agreement and not to give relief outside the agreement (s 3(6)). This anchors SAET’s procedural and substantive powers to existing Fair Work Act capacities while also constraining those powers contractually.
• Power to make rules for practice and procedure in relation to functions under referral agreements (s 3(9)).
• Power to interpret the scope and meaning of the referral agreement (s 3(12)) , SAET can determine the boundaries of its mandate under a given referral.
• Power to suspend, discontinue or take no action on a referral in specified circumstances (s 3(13)). This grants the Tribunal discretion to manage its caseload and account for parallel proceedings.

Rights and interaction with review/appeal:

• Where the referral agreement provides that a determination will be final and conclusive, that determination will not be subject to review or appeal under Part 5 of the South Australian Employment Tribunal Act 2014 (s 3(14)(a)). Conversely, if an application for review or appeal is made under Part 5, that application will be taken to be part of the referral (s 3(14)(b), s 3(15)). That allocates to the parties the right to agree finality, but also preserves the mechanism for review if initiated.

Regulatory powers:

• The Governor may make regulations contemplated by the Act or expedient for its purposes (s 4).
• The regulations may prescribe how provisions of the Fair Work Act 1994 and the South Australian Employment Tribunal Act 2014 apply to referrals, with modifications (s 3(7)). This is a significant delegated power that can change procedural or substantive interfaces between statutes.

Limitations and constraints:

• SAET is expressly prevented from giving relief beyond the referral agreement’s scope (s 3(6)).
• The definitions in this Act are tied to those in the Fair Work Act (s 2), so changes to federal definitions will change meaning here.

In short, the key operational duties are contractual and procedural: draft a written referral agreement, follow SAET rules, accept or contest finality within the contract, and expect SAET to interpret scope and potentially suspend action where parallel proceedings exist. Enforcement rights are supplied by the Fair Work Act mechanism.

The Act itself does not create criminal offences or fines; it focuses on civil enforcement of outcomes emerging from referral agreements. The primary enforcement mechanism is the ability to enforce SAET’s determinations, orders or other decisions that follow from a referral in the same way as an equivalent SAET determination under the Fair Work Act 1994 (s 3(10)). This means that, although the Act does not specify penalty measures, the determinations have the same enforceability as tribunal determinations made under the Fair Work Act, and enforcement remedies available under that federal regime will be available for breaches of SAET orders arising from referrals.

The Act also allows parties to contractually pre-commit to accept the Tribunal’s determinations or orders (s 3(4)(c)), and a determination on a referral is binding on the parties (s 3(10)(a)). Binding determinations that are enforceable under federal mechanisms create civil compliance obligations and enable remedies such as enforcement proceedings or execution to give effect to the determination. The Act does not itself list available remedies or enforcement procedures; it delegates enforcement to the machinery and provisions of the Fair Work Act 1994, which is referenced as the enforcement vehicle (s 3(10)).

SAET has procedural controls relevant to enforcement risk. It can determine the scope of the referral agreement (which will affect the range of enforceable outcomes) (s 3(12)), and it can decline to proceed, suspend or discontinue proceedings on a referral if there are other proceedings dealing with the subject matter or if it considers some other manner preferable (s 3(13)). Those powers reduce the risk of parallel or inconsistent enforcement actions, but they also create uncertainty for parties seeking timely enforcement since SAET may suspend or decline action.

The Act also interacts with review and appeal mechanisms. If a referral agreement provides that a determination is final and conclusive, it will not be subject to review or appeal under Part 5 of the South Australian Employment Tribunal Act 2014 (s 3(14)(a)). That contractual finality can limit avenues for collaterally attacking a determination, thereby strengthening its enforceability. Conversely, if an application for review or appeal under Part 5 is made, that application is taken to be part of the referral (s 3(14)(b), s 3(15)), meaning appeal processes can become integrated with the referral proceeding.

Because the Act relies on other statutes for enforcement detail, practical enforcement costs and remedies will depend on the provisions of the Fair Work Act (for enforcement processes) and on the way SAET chooses to exercise discretion under the referral. The Act leaves the precise procedural enforcement route to those instruments and to SAET rules that may be made under s 3(9).

The Act is designed to operate as a junction between private contractual referrals and the existing industrial relations and tribunal framework. It does so by explicit statutory cross-references.

Definitions: Section 2 of the Act adopts definitions used in the Fair Work Act 1994 by stating that any word or expression used in this Act that is the subject of a definition under s 4 of the Fair Work Act 1994 will have the same meaning here (s 2). This creates a direct interpretive dependency: changes to federal definitions in the Fair Work Act may shift the meaning of terms within this Act.

Tribunal powers and enforcement: Section 3(6) gives SAET functions and powers with respect to a referral as SAET might exercise under s 7 of the Fair Work Act 1994, subject to referral agreement limitations and the prohibition against granting relief outside the referral agreement. Section 3(10) makes a determination or order of SAET on a referral enforceable under the Fair Work Act 1994 "in the same way" as other SAET determinations. Thus, substantive and enforcement interaction is routed to the Fair Work Act. The Act therefore leverages federal statutory powers and enforcement mechanisms while framing SAET's referral jurisdiction within those powers.

Interaction with the South Australian Employment Tribunal Act 2014: Section 3(7) contemplates regulations that may prescribe modifications to the application of provisions of the Fair Work Act 1994 and the South Australian Employment Tribunal Act 2014 to the exercise of functions under this Act. Sections 3(14)-(15) set out rules about review and appeal under Part 5 of the South Australian Employment Tribunal Act 2014: if the referral agreement makes the Tribunal’s determination final and conclusive, that determination will not be subject to review or appeal under Part 5; conversely, if an application for review or appeal under Part 5 is made, that application will be taken to be part of the referral. These clauses make the availability and nature of judicial review and appeal contingent on the referral agreement and on procedural choices.

Regulations and rule-making: The Act expressly enables regulations (s 4) and contemplates regulations that make provision for the application of Fair Work Act and SAET Act provisions with modifications (s 3(7)). SAET may make rules regarding practice and procedure under the Act (s 3(9)). This delegated law-making power allows the executive and Tribunal to adapt how federal and state tribunal provisions apply to referrals, which can change procedural rights and obligations without primary legislation.

Transitional and historical interaction: The legislative history includes transitional provisions in the Statutes Amendment (South Australian Employment Tribunal) Act 2016, which provide that decisions and proceedings under the principal Act before the relevant day will be taken to be decisions or proceedings of the Tribunal and may be transferred to the Tribunal (see Statutes Amendment (South Australian Employment Tribunal) Act 2016 s 109 in the legislative history). That transition shows how the Act’s operation has been moved into the South Australian Employment Tribunal institutional framework.

Repeal and earlier legislation: The Act replaced earlier arbitration law , it repealed the Arbitration Act 1891 (historical note). Over time the principal Act has been amended and renamed (see "Formerly" in the legislative history). The legislative history shows many deletions and redesignations, indicating the Act’s interplay with successive statute reforms (notably Commercial Arbitration and later integration with SAET and Fair Work Act regimes).

Practical import: The Act does not operate in isolation; its terms are interpreted and applied against the background of the Fair Work Act 1994 and the South Australian Employment Tribunal Act 2014, and subject to regulations and SAET rules. Parties and advisers must therefore read referral agreements and SAET practice in the context of those broader legal instruments.

The legislative history provided with the Act records multiple amendments, renamings, deletions and re-designations since the Act’s origin in 1986. The principal points from the historical record contained in the source are:

• Original enactment and early names: The Act commenced as the Commercial Arbitration Act 1986 (No 102) with assent on 18 December 1986 and commencement on 9 July 1987. Over time the title and scope have changed; the Act has been formerly styled as the Commercial Arbitration Act 1986, Commercial Arbitration and Industrial Referral Agreements Act 1986, and presently Industrial Referral Agreements Act 1986.

• Amendments and insertions: The Act has been amended in material ways by several Acts listed in the history:

  • Commercial Arbitration (Uniform Provisions) Amendment Act 1992 (No 64) (assented 12 November 1992, commenced 1 January 1993) made multiple changes, including substitutions and insertions of provisions early in the 1990s (see "Provisions amended" entries pointing to 1993 commencements).
  • Statutes Amendment (New Rules of Civil Procedure) Act 2006 (No 17) (assented 6 July 2006; Pt 16 commenced 4 September 2006) substituted s 3(6) and inserted s 3(7), affecting the Tribunal’s powers and regulatory application (s 3(6) substitution is dated 4.9.2006; s 3(7) inserted by the same instrument).
  • Statutes Amendment (Public Sector Employment) Act 2006 (No 41) (assented 14 December 2006; Pt 8 commenced 1 April 2007) inserted and amended other subsections of s 3 (e.g., s 3(8), (9), (10) were inserted or amended).
  • Building and Construction Industry Security of Payment Act 2009 (No 77) (assented 10 December 2009; Sch 1 cl 3 commenced 10 December 2011) added a subsection s 3(9a) in 2011.
  • Commercial Arbitration Act 2011 (No 32) restructured and re-designated many provisions effective 1 January 2012; it deleted existing s 3 and redesignated provisions in Sch 1 cl 2 as s 3 under the 2011 Act , the legislative history therefore shows wholesale reworking of the Act’s structure in 2011.
  • Statutes Amendment (South Australian Employment Tribunal) Act 2016 (No 63) (assented 8 December 2016; Pt 11 (ss 108 & 109) commenced 1 July 2017) made amendments to s 3(1), (4), (5), (6), (7), (9), (10), (12), (13), (14), (15), (16) and transitional provisions for shifting jurisdiction to the Tribunal, including the substitution of s 3(14) and other consequential amendments to align with the South Australian Employment Tribunal.

• Deletions and redesignations: The detailed "Provisions amended" table in the legislative history shows that many sections were deleted or substantially rewritten at various dates. For example, multiple sections appearing in the original Act were deleted by the 2011 Commercial Arbitration Act 2011 reforms (Sch 1 cl 4 deletions effective 1 January 2012). Several subsections were substituted or amended by the 2006 and 2011 amendments. The effect is that the current short Act is a product of cumulative amendments and restructurings, particularly a major redesignation in 2011 and Tribunal-related changes in 2016 that reflect institutional reorganisation.

• Transitional provisions: The 1992 and 2016 amending acts included transitional provisions. The 1992 Act’s s 22 preserved certain applications of pre-amendment law in pending proceedings. The 2016 Statutes Amendment (South Australian Employment Tribunal) Act provided transitional provisions in s 109 that treated prior decisions, directions, determinations and orders of the Industrial Relations Commission of South Australia under the principal Act as decisions of the Tribunal from the relevant day, permitted transfer of proceedings, and authorised the Tribunal to adopt or make decisions to ensure a smooth transition.

• Notes on obsolescence: The legislative history includes a caution that references within the Act to other legislation, bodies or offices are not automatically updated and may be obsolete; earlier versions are listed at the end of the history. The repeated reworkings, redesignations and deletions demonstrate that the Act has been subject to frequent statutory housekeeping, institutional realignment and harmonisation with federal industrial law.

Practical implication: anyone relying on older versions of the Act must check which provisions remain in force. The legislative history indicates areas of substantive change in how arbitration/referral interacts with other procedural regimes (notably Fair Work Act and SAET legislation) and highlights that the Act has been used both as an instrument for ADR referrals and as part of broader tribunal restructuring.

The source text supplied contains no judicial decisions, reported cases or litigation summaries under the Industrial Referral Agreements Act 1986. The legislative history and text do not name any cases or provide examples of judicial interpretation. Therefore, based solely on the source, there is no litigation history to report.

However, the Act’s own provisions anticipate litigation and review contexts by referencing appellate and review mechanisms in the South Australian Employment Tribunal Act 2014 and the Fair Work Act 1994. Specific statutory hooks include:

• s 3(10), which makes SAET determinations on a referral enforceable under the Fair Work Act 1994 in the same way as other SAET determinations, meaning enforcement litigation would follow the federal procedures for enforcing tribunal orders.
• s 3(14)-(15), which specify how Part 5 of the South Australian Employment Tribunal Act 2014 applies to determinations made under referral agreements: a referral agreement can provide that a Tribunal determination is final and conclusive, in which case it is not subject to review or appeal under Part 5; conversely, if an application for review or appeal under Part 5 is made, that application is taken to be part of the referral.

The legislative history records transitional mechanisms moving jurisdiction and matters from the Industrial Relations Commission to the South Australian Employment Tribunal (Statutes Amendment (South Australian Employment Tribunal) Act 2016, s 109). Those transitional clauses potentially cause pre-existing decisions or proceedings to be treated as Tribunal matters, and they authorise the Tribunal to receive evidence and adopt prior findings. While the supplied history does not include judicial outcomes, the transitional framework demonstrates that litigation and review trajectories that existed under earlier institutional arrangements were intended to continue under the Tribunal.

Practical implication for lawyers and litigators: the Act’s lack of cases in the supplied source does not imply absence of judicial interpretation in the broader law; it means the supplied text contains no litigation citations. When advising clients, practitioners should search case law databases for decisions that interpret referral agreements, SAET jurisdiction under the Act, enforcement using the Fair Work Act, and the scope of finality provisions under s 3(14). The Act’s provisions concerning finality, SAET’s power to determine the scope of referral agreements (s 3(12)), and SAET’s discretion to suspend or discontinue proceedings (s 3(13)) are likely issues that would produce litigation in practice; however, such outcomes are not documented in the source provided.

The Act is compact, but it contains several provisions that create legal and practical pitfalls for parties who rely on referral agreements without careful drafting and procedural planning.

1. Written agreement is jurisdictional. The Tribunal’s power under the Act only arises where two or more parties have entered a written referral agreement (s 3(1)). An oral understanding will not trigger the Act. Parties who assume an informal arrangement is sufficient risk being outside the statutory referral mechanism.

2. Scope-limitation and relief outside the agreement. SAET is constrained from giving relief outside the referral agreement (s 3(6)). If parties neglect to specify remedies or outcomes they seek in the referral agreement, SAET may lack power to grant them even if those remedies would be available in another forum. Parties should specify desired relief, remedies and any limits in the agreement.

3. Binding finality can be contracted away. If the referral agreement states that a determination will be final and conclusive, that determination will not be subject to review or appeal under Part 5 of the South Australian Employment Tribunal Act 2014 (s 3(14)(a)). Parties may unintentionally forfeit rights of review or appeal when they agree to finality; advisers must ensure clients are aware that acceptance of finality removes appellate avenues under Part 5 unless expressly preserved.

4. Withdrawal is restricted. Once a referral has been made, a party cannot withdraw without the written agreement of the other parties (s 3(18)). This removes unilateral exit rights and can trap parties into a process they later find disadvantageous. Drafting should address withdrawal mechanics and contingencies to avoid deadlock.

5. SAET’s interpretive power. SAET may determine the scope or meaning of the referral agreement (s 3(12)). That can lead to outcomes that differ from parties’ expectations if the agreement is ambiguous. Careful, precise drafting of scope, classes of disputes, remedial powers and exclusion clauses is necessary to reduce interpretive risk.

6. SAET discretion to suspend or discontinue. The Tribunal may determine to take no action, or to suspend or discontinue action if it considers the matter should be determined another way, if related proceedings are pending under the Fair Work Act or elsewhere, or for other reasonable cause (s 3(13)). This creates procedural uncertainty and the potential for delay, particularly where parallel proceedings are available. Parties should consider sequencing and exclusivity clauses in referral agreements.

7. Dependence on rules and regulations. Parties must seek assistance in accordance with SAET rules (s 3(5)), and the Act contemplates regulations that may modify the application of the Fair Work Act and Tribunal Act provisions (s 3(7), s 4). Because procedural detail can be supplied by delegated instruments and Tribunal rules, parties face a moving target if rules/regulations change. Advisers should consult the current rules and any applicable regulations at the time of referral.

8. Definitions tied to the Fair Work Act. The Act adopts certain definitions from the Fair Work Act 1994 (s 2). Changes to the federal Act’s definitions could affect interpretation of terms in a referral agreement. Drafting should therefore avoid unnecessary reliance on contested or mutable statutory terms where precision is required.

9. Enforcement pathway not specified in the Act. Enforcement is via the Fair Work Act (s 3(10)), but the Act does not set out which remedies or enforcement steps will apply in particular cases. Parties may misunderstand the practical enforcement remedies available without consulting the Fair Work Act provisions.

10. Institutional transition and historical reworkings. The legislative history shows multiple deletions, substitutions and redesignations, and transitional provisions that moved jurisdiction to the South Australian Employment Tribunal (see legislative history, e.g. Statutes Amendment (South Australian Employment Tribunal) Act 2016 s 109). Practitioners using archived forms or precedents must ensure they are working with the current statutory framework and Tribunal practice.

11. Limited party categories. Only certain categories of parties are specified (employers, employees, registered associations, United Trades and Labor Council) (s 3(3)). Third parties or unrelated stakeholders lack express capacity to be parties under this Act, so multi-party disputes involving non-specified parties require alternative mechanisms.

12. No express protection for non-parties. The Act does not provide express procedural rights or notice requirements for non-party employees or other third parties whose interests might be affected by a referral outcome. Parties should consider whether consequential rights or obligations need separate contractual or statutory protection.

Each of these is a concrete mechanism-driven risk. They are not speculative; they follow from the statutory text and the architecture of referral-based tribunal jurisdiction.

To use the Act effectively and reduce compliance risk, parties and their advisers should follow a disciplined approach to drafting, procedural planning and interaction with SAET.

1. Prepare a written referral agreement that satisfies s 3(1):

   • Ensure the agreement is in writing and signed by the required parties. The Act makes written agreement the jurisdictional trigger.
   • Specify precisely the matters to be referred: either a particular matter or dispute, or matters of a specified class (s 3(2)). Use clear definitions and examples to avoid interpretive disputes under s 3(12).
   • Specify the parties expressly and their capacity (employer, employee, registered association, United Trades and Labor Council) (s 3(3)).
   • Decide and set out SAET’s role: conciliator, mediator, arbitrator; whether recommendations are to be made; and whether determinations/orders are to be accepted (s 3(4)). If finality is desired, include an explicit finality clause, understanding s 3(14)’s effect on appeals.

2. Address remedial scope and limits:

   • Specify the remedies and orders SAET may make so SAET is not prevented from granting intended relief under s 3(6). If certain remedies are intended (reinstatement, backpay, declaratory relief), state them in the referral agreement.
   • If parties intend to restrict remedies or exclude certain types of relief, record those limits unambiguously.

3. Deal with withdrawal, amendment and exit:

   • Include an amendment procedure allowing variation by agreement (s 3(17)).
   • Include contingencies for withdrawal and process for written consent if withdrawal is to be possible given s 3(18) prohibits unilateral withdrawal after referral. Consider practical timelines and escape clauses for exceptional circumstances.

4. Address parallel proceedings and exclusivity:

   • Include clauses about exclusivity of forum or agreement to refrain from commencing parallel proceedings, or provide for suspension in the event other proceedings start (given s 3(13) allows SAET to suspend where other proceedings exist).
   • Consider stay or waiver provisions that align with procedural objectives and manage SAET’s discretion to suspend or discontinue.

5. Incorporate procedural compliance:

   • Confirm which SAET rules apply and ensure the referral agreement requires compliance with SAET rules (s 3(5)). Obtain current Tribunal rules and consider adopting their procedural timelines and discovery practices into the agreement.
   • Monitor regulations under s 4 and any instruments made under s 3(7) that modify application of the Fair Work Act or SAET Act to referrals.

6. Consider appellate and review consequences:

   • If parties want finality, include clear language that a determination is final and conclusive. Remember that such a clause prevents review or appeal under Part 5 of the SAET Act as provided in s 3(14)(a).
   • If preserving review rights is important, do not sign a finality clause; instead, set out a framework for appeal and review in the referral agreement.

7. Draft to reduce interpretive risk:

   • Avoid vague language. Because SAET may determine the scope or meaning of the referral agreement (s 3(12)), drafting clarity reduces the risk of Tribunal-led reinterpretation.
   • Define key terms and scope boundaries, including specification of classes of disputes, timeframes and remedies.

8. Plan for enforcement:

   • Understand that enforcement of SAET determinations made on referral relies on the Fair Work Act mechanisms (s 3(10)). Parties should be advised of the practical steps for enforcement, possible costs, and procedural steps under the Fair Work Act.
   • Build into the agreement the allocation of costs for enforcement, including legal costs and any agreed indemnities or cost-sharing mechanisms.

9. Check statutory definitions:

   • Because s 2 imports definitions from the Fair Work Act 1994, verify the meaning of any used statutory terms at the time of drafting. If reliance on a particular statutory term is critical, define it in the agreement for certainty.

10. Update templates and procedures in light of legislative history:

    • The Act has been amended and integrated with the South Australian Employment Tribunal framework (see legislative history, Statutes Amendment (South Australian Employment Tribunal) Act 2016). Ensure templates and internal procedures reflect current statutory text and SAET practice rules.

11. Consider stakeholder notifications:

    • Though the Act does not require notice to third parties, consider whether stakeholders (such as employees not party to the referral but affected by outcomes) should be notified or be given participatory rights via separate contractual arrangements.

12. Engage counsel early:

    • Given the mixture of statutory constraints, delegated rule-making, and the capacity of SAET to interpret scope and suspend proceedings, engaging employment-law counsel at drafting stage will reduce procedural and enforcement risks.

Checklist summary:

• Written agreement in place and signed (s 3(1)).
• Clear description of matters referred (s 3(2)).
• Parties identified and capacities checked (s 3(3)).
• SAET role specified (s 3(4)); procedural compliance clause referencing SAET rules (s 3(5)).
• Remedies and limits expressly stated (s 3(6)).
• Review/finality position agreed and documented (s 3(14)).
• Amendment and withdrawal mechanics set (s 3(17), s 3(18)).
• Enforcement and costs plan linked to Fair Work Act procedures (s 3(10)).
• Current SAET rules and any regulations confirmed (s 3(7), s 4).

Following these steps will align referral agreements with statutory requirements and reduce the principal operational and interpretive risks identified by the Act.